p 


^^ 


.i 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


» 


r 


K3-T 

REPORTS 


OP 


CASES 

ARGUED  AKD  DETERMINED 


IN   THE 


€n0lii^|)  Courts  of  Common  Itato* 


WITH  TABLES  OF  THE  CASES  AND  PRINCIPAL  MATTERS. 


EDITED  BY 

THOMAS  SERGEANT  and  JOHN  C.  LOWBER,  Esqrs. 

or  TBB    PHItAn£LPHIA    BAR. 


VOL.  XV. 

CONTAINING  CASES 
Ju  (he  King't  Bench  and  Common  Pleax,  in  18?7-9. 


PHILADELPHIA  : 

p.  H.  NICKLIN  AND  T.  .JOHNSON,   LAW  BOOKSELLERS. 

No.  175,  Chestnut  Street. 

1830. 


K3-I  ■ 


JUDGES 

DURING  THE  PERIOD  COMPRISED  IN  THIS  VOLUME. 

— -dC-- — 

Of  the  Court  of  King's  Bench. 

Charles  Lord  Tenterden,  C.  J. 
Sir  John  Bayley,  Knt. 
Sir  George  Sawley  Holroyd,  Knt. 
Sir  Joseph  Littledale,  Knt. 


Of  the  Court  of  Common  Pleas. 

The  Right  Hon.  Sir  William  Draper  Best,  Ld.  C.  J. 
Hon.  Sir  James  Allan  Park,  Knt. 
Hon.  Sir  James  Burrough,  K>it. 
Hon.  Sir  Stephen  Gaselee,  Knt. 


Attorneys  General. 

Sir  Charles  Wetherall,  Knt. 
Sir  James  Scarlett,  Knt. 

Solicitors  Genei'al. 

Sir  Nicholas  Conyngiiam  Tindal,  Knt. 
Edward  Burtenshaw  Sugdex,  Ktit. 


Vol.  XV. 


A  TABLE 


OF    THE 


NAMES    OF    THE    CASES 


REPORTED  IN  THIS  VOLUME. 


A. 

Abbey  V.  Sill  452 

,  Sharp  V.  413 

Aked  V.  Stocks  60 

Alcock  V.  Cooke  462 

Allan,  Phillips^v.  269 

Allen  V.  SugTue  297 

V.  Morrison  298 

Allison  V.  Hayden  90 

Ames,  Maggs  v.  45 

Amner  V.  Cattell  419 

Andrews  v.  Dally  74 

Archbisbop  of  Canterbury  v.  Tappen  174 

350 
42 
518 
459 
151 
216 
82 


•  of  Tuam  v.  Robeson 


Archer  v.  Hale 

Armitage  v.  Berry 

Arnold  v.  iVishop  of  llath  and  Wells 

Ashley  Hay,  Inhabitants  of,  Hex  v. 

Atkinson  v.  Hell 

Axford  V.  I'errit 

n. 

Backwell,  Smith  v. 
Bailey  v.  Cidverwcll 
Bainbridge,  Coates  v. 
Barham,  Iniiabitants  of,  Rrx  v. 
Barr,  Sti-otbcr  v. 
Barham  v.  Farclnother 
Bate,  Micldam  v. 
Baxter,  Ex  parte, 
Batthews  v.  (ialindo 
Beaty,  Itiggett  v. 
Beavan  v.  Harris 
Beaumont,  Unndle  v. 
Boddington  v.  Hcddinglon 
Bclrlicr  V.  Sikes 
Bell,  Atkinson  v^ 

V.  Bilton 

V. Jacobs 

V.  Mnrpliy 

Sparkes  v. 

Benedict,  Scaton  v. 
Brnnet,  Bourne  v. 
V.   Kdsvardi, 


62 

261 

368 

157 

391 

79 

324 

234 

88 

4,54 

96 

68 

4-19 

]H6 

216 

90 

68 

74 

143 

3.i4 

27 

329 


Bennet  v.  Dawson  88 

Benson  v.  Hippius  38 

Bent,  Cox  v.  410 

Benton,  Ilarrod  v.  202 

Berrv,  Armitage  v.  518 

Berwick  upon   Tweed,    Justices   of. 

Rex  V,  230 

Biggs  V.  Fellows  248 

Bilson,  Gains  v.  24 

Bilton,  Bell  v.  90 

Birmingham,  Inhai)itants  of,  Rex  v.      151 
Bird  V.'  Holbrook,  91 

Bishop  of  Bath  and  Wells,  Arnold  v.    459 

of  Exeter,  Gully  v.       68,  360,  408 

14 


]?lackburn  v.  Blackburn, 

Blake,  Knowlcs  v. 

Blakey,  Hanson  v. 

Blandford,  Carpenter  v. 

Bluciuicre,  Hunt  v. 

Bolland  v.  Nash, 

Bourne  v.  Bennet, 

Bousfleid  V.  Godfrey, 

Bray,  Doe  v. 

Brazier  v.  Jones, 

Brcnton,  Rowe  v. 

Briunt,  iMiilpot  v. 

Bria\ells,  Hnudrcd  of,   Elsmore  v 

Bridges  v.  Smytli, 

Briglit,  Jones  v, 

Britten  v.  Hughes, 

British  Museum  v.  Payne, 

Bromyard,  Rex  v. 

Brooke  v.  Noakes, 

Brooks,  Kex  v. 

Brown,  Howanl  v. 

Revctt  V. 


Bryan  v.  W  hislh  r, 
Bryant  v.  Sir  J.  I'ening, 
Buck,  Nott  V. 
Burden  v.  Halton, 
Buckingham.  Justices  of,  Rrx  v. 
Burgess,  Freeman  v. 
Burleigh  v.  Stoti, 
Burn!.  V.  Carter, 


5ir 

54 
301 

83 
157 

27 
485 
339 
162 
"335 
126 
266 
481 
529 
502 

69 
210 
289 
229 

13 
345 
21# 
483 
403 

37 
240 

25 
151 
488 


TABLE    OF    CASES. 


Bushnell  v.  Levi,  A59 

Buszard  v.  Capcl,  169 


Calvert  V.  Froud,  70 

V.  Tomlin,  343 

Capcl,  Buszard  v.  169 

Garden,  Vera  v.  483 

Cai'pcntcr  v.  Blandford,  301 

V.  Cresswell,  22 

Carr,  Field  V.  348 

Carter  v.  Carter,  479 

V.  Sanderson  37 J 

,  Burns  v.  488 

Carrutliers  v.  Payne,  447 

Case,  South  Carolina  Bank  v.  256 

Cattel,  Anmcr  v.  419 

Chatfield  v.  Parker,  290 

Cholmely  v.  Paxton  364 

Chives,  Ditcliam  v.  121 

Cliristie  V.  Hamlet  414 
Cluistchurch,  London,  Inhabitants  of, 

Rex  V.  326 
Churchill  v.  Crease,  409 
Clark,  Doe  dem.  Thompson  and  oth- 
ers V.  33 1 
Clay,  Coe  v.  492 
Coaks,  Jay  v.  323 
Coats  V.  Bainbrldg'e,  368 
Coe  V.  Clay,  492 
Cole  V.  Eagle,  251 
Coles  V.  Hulme,  299 
Collins  V.  Wilson,  70 

V.  Price,  389 

Colvin  V.  Newberry,  179 
Commissioners  of  Sewers  for,  8cc. 

Rex  V.  237 

Cook,  Thomas  v.  333 

Cooke,  Alcock  v.  462 

Combe,  Rex  v.  155 

Cooper,  Groocock  V.  198 

Thorpe  v.  387 

Cope,  Furness  v.  3b7 

Corlett,  Costello  v.  47 

Cornish  v.  Searell,  267 

Cori'ie,  Preece  v.  353 

Costello  V.  Corlett,  47 

Cox  V.Bent,  410 

Crease,  Churchill  v.  409 

Creed,  Doe  dem.  Daviesv.  459 

Cristal,  Ferguson  v.  454 

Crofts  v.  Stocklcy,  356 

Crole,  Parker  v.  371 

Crowdcr  v.  Long,  3(J9 

,  Lovick  v.  165 

Crowland,  Inliabitants  of,  Rex  v.  330 

Cubitt  v.  Porter,  211 

Culliford,  ex  parte,  v.  Warren,  203 

Culvcrwell,  Bailey  v.  261 

D. 

Dally,  Andrews  v.  74 

Davis  V.  Russell,  463 

V.  Wilkinson,  77 

Dawson,  Bennett  v.  88 

Dawling,  dem.;  SeJby,   vouchee,  27 

Deane,  Seago  v.  39 


De  lUaquiere,  Hunt  v. 
l)c  Crespigny  v.  Wellesley, 
Denton,  Fairlic  v. 
Desborougli,  Everett  v. 

Lindenau  v. 


Dickinson,  Henman  v. 
Dicas  v.  Jay 
Ditcham  v.  Chivis 
Dixon  v.  Ilovill 
Doe  v.  Bray 

v.  Clark 

V.  Dycball 

v.  Lawson 

v.  Fletcher 

v.  Maisey 

V.  Martyn 

V.  Prigg 

V.  Robinson 

v.  Watt 

V.  Woliey 

Doe  dem.  Davies  v.  Creed 

Dixon  V.  Willis 

Fisher  v.  Giles 

Southouse  V.  Jenkins 

Stevens  V.  Scott 

Tilt  v.  Stratton 

Douglas  v.  Forrest 
Donne  v.  Martyr 
Drummond,  Elvin  v. 
Dunn,  Maclean  v. 
Duvergier  v.  Fellows 
Dyeball,  Doe  dem.  Lawrie  t. 

E. 

Eagle,  Cole  v.  251 

Earle  v.  Ilolderness  41 

Edge  v.  Parker  328 

Edmonds  v.  Lowe  250 

Edwards,  Bennet  v.  329 
Edwinstow,  Inhabitants  of.  Rex  v.         327 

Elliott,  Willes  v.  13 

Ellis,  Macbeath  v.  79 

v.  Schmneck  526 

Elsmore  v.  l"he  Hundred  of  Briavells  266 
Filvin  v.  Drummond  24 
Elwortliy  v.  Maunder  450 
Ely,  Bisliop  of.  Rex  v.  158 
Evans  v.  Wiiylfi  514 
Everett  v.  Desborough  518 
,  Rex  v.  158 


535 

474 
246 
518 
306 
409 
447 
121 
104 
339 
331 
154 
312 
151 
335 
276 
206 
222 
225 
150 
459 
492 
485 
506 
59 
36 
113 
154 
24 
129 
436 
154 


Fairlie  v.  Denton 
Falmouth  Earl  of,  Swann  v. 

Lord,  V.  George 

Farebrotlier,  Bartram  v. 
Fellows,  Duvergier  V. 

Biggs  V.       ' 

Ferguson  v.  Cristall, 

Field  v.  Carr, 

Firtli  V.  Thrush, 

Fletcher,  Doe  dem.  Watson  v. 

Forrest,  Douglas  v. 

Foss,  Goldstein  v. 

Fothergill  v.  Walton, 

Fov,  Penny  v. 


246 
264 
449 

79 
436 
248 
454 
348 
242 
151 
113 

53 
123 
146 


TABLE  OF  CASES. 


Frazer,  Limerick  and  Waterford  Rail- 
way Co.  V.  14 
Freeman  v.  Burgess,  25 
Froud,  Calvert  v.  70 
Furnell  v.  Thomas,  411 
Fumess  v.  Cope,  387 

G. 

Gains  v.  Bilson,  24 

Galindo,  Batthews  v.  88 

Gallimore,  Vickers  v.  415 

Garner  v.  Shelly  510 

George,  Lord  Falmouth  v.  449 

,  Whitnash  v.  295 

Gibbons  v.  Phillips,  260 

Gibbs  V.  Stead,  288 

Gibson,  Wadsworth  v.  76 

Gifford  V.  Yarborough  (Lord),  403 

Giles,  Doe  dem.  Fisher  v.  485 

GUkes,  Rex  v.  261 

Glenister,  Helps  v.  295 

Godfrey,  Bousfield  v.  485 

Goldstein  v.  Foss,  53 

Grant,  Routledge  v.  99 
Great  Bolton,  Inhabitants  of,  Rex  v.  154 
Great  Driffield,  Inliabitants  of,  Rex  v.  528 
Great  Sheepy,  Inhabitants  of,  Hex  v.    154 

Greet,  Rex  v.  240 

Gregory,  Ex  parte,  251 

Grimman  v.  Legge,  229 

Groocock  v.  Cooper,  198 

Grubb  vouchee,  Martin  dem.  403 
Gully  V.  Bishop  of  Exeter,       68,  360,  408 

Gurney,  Wells  v.  336 

H. 

Hadley,  Holl  v.  367 

Hale,  Archer  V.  42 

Hall,  Siordet  v.  87 

Halton,  Burden  v.  37 

Hamlet,  Christie  v.  414 

Handley  v.  Levy,  323 

Hanson  v.  Blukey,  54 

Hargreavcs,  Tcrrington  V.  515 

Harris  V.  Ikavan,  96 

Hanison,  Mount  v.  11 

Harrod  V.  Mcnton,  202 

Hart,  Stephenson  v.  47 

Ha^stclow  V.  Jackson,  204 

Hawks  V.  Salter,  125 

Haydon,  Allison  v.  90 

Hayward  v.  M'riglit,  212 

Helps  V.  Glenister,  295 

Heijar,  Price  v.  87 

Hcnhy  V.  Sojjcr,  147 
Henly  v.   Mayor  and    Burgesses  of 

Lyme,  376 

Hcnman  V.  Dickinson,  409 

Herring,  Witiiington  v.  492 

Hcywoofl  V.  Watson,  55 

Hills  V.  Street,  358 

Hippius,  Benson  v.  38 

Hi])sw(l!,  Inhaliitants  of.  Rex  v.  267 

Holman,  Robinson  v.  73 

Holdcmcss  V.  Sharkrjs,  315 

Holhrach,  l.oukfs  v.  26 

Holdcrncss,  F,arlo  v.  41 

Holbrook,  Bird  v.  91 


Holl  V.  Hadley, 
Hooker,  Lawrence  v. 
Home,  Riley  v. 
Howard  v.  Brown, 
Howden,  Rowe  v. 
Hovill,  Dixon  v. 

V.  Stephenson, 


Hubbard  v.  Jackson, 

,  Maugham  v. 

,  Teague  v. 

V.  Wilkinson, 

Hudson  V.  Revett, 
Hughes,  Britten  v. 
Hulme,  Coles  V. 
Humphrej^  Tucker  v. 
Huntv.  Blaquiere, 

v.  De  Blaquiere, 

,  Knight  v. 

Hutchinson,  ex  parte  Lady, 


Jackson,  Hastelow  v. 
,  Hubbard  v. 


Jacob,  Bell  v. 
Jacobs  v.  Latour, 
Jay,  Dicas  v. 

v.  Coaks, 

Jenkins,  Lester  v. 
,  Doe  dem. 


Southouse  V. 


Jones  V.  Kcnrick, 

V.  Bright, 

V.  Studd, 

,  Brazier  v. 

,  Pattison  v. 


36r 

345 

422 

13 

69 

104 

515 

12 

147 

234 

276 

467 

502 

299 

63 

83 

535 

488 

87 


204 
12 
68 
388 
447 
323 
232 
506 
231 
529 
103 
162 
303 


Keates  v.  Whieldon,  144 

Kcnrick,  Jones  v.  231 

Kent,  Justices  of,  Rex  v.  324 

The  King  v.  The  Sheriff  of  London,  27 
Kingston-upon-Hull  Dock  Company, 

V.  I^a  Marche,  153 

Knight  V.  Lee,  83 

V.  Hunt,  488 

Knowlcs  v.  Blake,  517 

Kynur  v.  Larkin,  371 


La    Marche,     Kingston-upon-Hull 

Dock  (Company  V.  153 

Lancashire,  Justices  of,  Rex  v.  309 

Langston  v.  Polo,  428 

Larkin,  Kymer  v.  371 

Latour,  Jac(>bs  v.  388 

Law  ford.  Inhabitants  of.  Rex  v.  216 

Lawrence  v.  Hooker,  345 

Lawson,  Doe  dem.  Lidgbird  v.  312 

Le(li)etter  v.  Salt,  91 

Lees  V.  WhUcomb,  357 

Legge,  (irimman  v.  229 

Legli,  Kniglil  v.  ^83 

Lenny,  Wliali-  v.  347 

Lester  V.  .knkinn,  232 

Levi,  Buslinell  v.  4.59 

Levy,  Handle}  v.  323 

Lew,  Inhal)it.ints  of,  Rei  v.  326 

Lill,  Abbey  v.  452 


TABI.i:    OF    CASES. 


Llmeriok  and  AVaterford  Railway  Co. 

V.  Frsjser,  14 

Ijndcnau  v.  Dtsboroiigh,  306 

Lloyd  V.  Sij;ouriify,  527 

,  Sit-'ounu'v  V.  319 

l.oakos,  llolbcacli  v.  26 
London  (.ias  Liglii  aiul  Coke  Co., 

Rcxv.  153 

Loutli,  Inhabitants  of,  Kex  v.  210 

Long^,  Crowdcr  v.  309 

Lovick  V.  Crowdcr,  165 

Lowe,  Edmonds  V.  260 

Lucas  V.  Nockclls  132 

Lusty,  Howies  v.  28 
Lyme,  Mayor  and  Burg'csses  of,  llcn- 

ly  V.  376 

Lyon,  Taylor  v.  461 


AL 

Macbeath  v.  Ellis, 

Mackie  v.  Warren, 

Maclean  v.  Uunn, 

Macklin  v.  M'atcrhouse, 

M'Dougal  V.  Robertson, 

Magg's  V.  Ames, 

Magrave  v.  White, 

Maisey,  Doe  dem.  Roby  v. 

Mars,  Tenon  v. 

Martyn,  Doe  dem.  Brune  v. 

Martyr,  Donne  v. 

Martin,  dem.;  Crubb,  vouchee, 

Mayhew,  Seely  v. 

Mattishall,  Inhabitants  of,  Rex  v. 

Maugham  v.  Hubbard, 

Maulden,  Inhabitants  of,  Rex  v. 

Maunder,  Elworthy  v. 

Michlam  v.  Bate, 

Monmouthshire,  Justices  of.  Rex 

Morland  v.  Pellat, 

Morris,  Radbourn  v. 

Morrison,  Allen  v. 

Moses  V.  Richardson, 

Mount  V.  Harrison, 

Murphy  v.  Bell, 

MuiTay  V.  Reeve.s, 

N. 

Nash,  Bolland  v. 
New,  Pitt  V. 
Ncwbcny,  Colvin  v. 
Newman,  Page  v. 
Nightingale,  Wilcoxon  v. 
Noakes,  Brooke  v. 
Norton  V.  Pickering, 
Notley  V.  Buck, 
Nockells,  Lucas  v. 
Nott  V.  Buck, 
Nunn,  in  the  matter  of, 

,  Wood  V. 

Nurse,  Paul  v. 


79 

408 

129 

4:21 

31,  106 

45 
252 
335 
324 
276 
154 
403 

72 
334 
M7 
155 
450 
324 
'.  167 
332 

98 
298 
254 

11 

74 
254 


157 

325 
179 
274 
57 
289 
314 
178 
132 
403 
325 
346 
273 


I'attison  v.  .lones, 
Paul  V.  Nurse, 
Paxton,  Cholmcly  v. 
Payne,  Carruthersv. 

-,  British  Museum  v. 


P. 


Page  V.  Newman, 
Parker,  Chatfield  v. 

,  Edgar  v. 

V.  Crole, 


274 
290 
338 
371 


Pellat,  Morland  v. 
Penny  v.  Foy, 
Perring,  Sir  J.,  Bryant  v. 
Perrett,  Axford  v. 
Phillips  V.  Allen, 
-,  Gibbons  v. 


Philpot  V.  Briant, 
Pickering,  Norton  v. 

,  Scales  V. 

Piimey  v,  Pinney, 
Pitt  V.  New, 
Pole,  Langston  v. 
Porter,  Cubitt  v. 
Pratt  V.  Swain, 
Precce  v.  Corrle, 
Price,  Collins  v. 
V.  Ilelvar, 


303 
273 
364 
447 

69 
332 
146 
483 

82 
269 
260 
126 
314 

37 
230 
325 
428 
211 
(219 
353 
389 

87 
206 
413 
456 
490 
2^5 


Prigg,  Doe  dem.  Long  v. 
Prince,  Turner  v. 
Protheroe,  Williams  v. 
Prodis  V.  Reed, 
Pulsford,  Rex  v. 

R. 

Radburn  v.  Morris,  98 

Raggett  V.  Beaty,  434 

Rainforth,  Wildbor  v.  144 

Rawdcn,  Inhabitants  of,  Rex  v.  329 

Reed,  Provis  v.  490 

Reeves,  Murray  v.  254 

Revctt,  Hudson  v.  467 

Revett  V.  Brown,  345 

Rex  V.  Ashley  Hay,  Inhabitants  of,  151 

V.  Barham,  Inhabitants  of,  157 

. V.  Berwick-upon-Tweed,  Jus- 
tices of,  230 

V.  Birmingham,  Inhabitants  of,  151 

V.  Bromyard,  Inhabitants  of,  210 

V.  Brooks,  229 

V.  Buckingham,  Justices  of,  240 

V.  Christ   Church,   London,   In- 
habitants of,  326 

V.  Commissioners  of  Sewers,  237 

V.  Combe,  Inhabitants  of,  155 

V.  Crowland,  Inhabitants  of,  330 

V.  Pydwinston,  Iniiabitantsof,  327 

V.  Ely,  Bishop  of,  158 

V.  Everett,  158 

V.  Ciilkes,  261 

V.  Creat  Bolton,  Inhabitants  of,  154 

V.  Great  Driffield,  Inhabitants  of,  328 

V.  Great  Sheepy,  Inhabitants  of,  154 

V.  (ireet,           "  240 

V.  Hipswell,  Inhabitants  of,  267 

V.  Kent,  Justices  of,  324 

V.  Lancashire,  Justices  of,  309 

V.  Lawford,  Inhabitants  of,  216 

V.  London  Gas  Light  and  Coke 

Company,  153 

V.  Low,  Inhabitants  of,  316 

V.  Louth,  Inhabitants  of,  210 

V.  Mattishall,  Inhabitants  of,  334 


TABLE  OF  CASES. 


Rex  V.  Maiilden,  Inhabitants  of,  155 

V.  Monmouthshire,  Justices  of,  167 

V.  Pulsford,  235 

V.  Kawden,  Inhabitants  of,  329 

V.  Richards,  253 

•  V.  Rosliston,  Inhabitants  of,  326 

V.  Saint  Andrews,  Cambridge,  326 

V.  Pcrshore,  327 

V.  Martin,  Leicester,  327 

V.  Shipton,  Inhabitants  of,  155 

V.  Shipton,  Robert,  337 

T.  Smith,  232 

V.  Stourbridge,  Inhabitants  of,  155 

V.  Sutton,  252 

V.  Walnfleet,  All  Saints,  Inhabi- 
tants of,  206 

V.  Wilhams,  327 

V.  Wilts,  Justices  of,  242 

V.  Winter,  338 

V.  Worcestershire,  Justices  of,     210 

Riddcll  V.  Sutton,  416 

Richards,  Rex  v.  253 

Richardson,  Moses  v.  254 

Richmond  v.  Smith,  144 

Riley  v.  Home,  422 

Robertson,  M'Dougal  v.  31,  106 

Robinson,  Doc  dem.  Jeff"  v.  222 

V.  Ilofman,  73 

Robeson,  Archbishop  of  Tuam  v.  350 

Rooke  V.  Wasp,  412 

Rose,  Symcs  v.  447 

RosUston,  Inhabitants  of,  Rex  v.  326 

Rowc  V.  Hrenton,  335 

V.  Howdcn,  69 

Rowlcs  V.  Lusty,  28 
Royal  Exchange  Assurance  Company, 

Samuel  v.  160 

Rundcl  V.  Beaumont,  68 

Russell,  Davis  v.                       •  453 

Rutlcdgc  V.  Grant,  99 

S. 

Saint  Andrew,  Cambridg-c,  Rex  v. 

I'crshore,  Rex  v. 

Martin,  Leicester,  Rex  v. 

Salt,  Ledbcttcr  v. 
Salter,  Hawks  v. 
Samuel  v.  Royal  Lxcliangc  Assurance 

Company, 
Saundcrson,  Carter  v. 
Scales  V.  I'ickcring, 
Schma-ck,  Ellis  v. 
ScOtt,  Doc  dem.  Stevens  v. 
Scago  v.  Dcane, 
Scare II,  Cornish  v. 
Seaton  v.  Benedict, 
Sccley  V.  Mayhcw, 
Sclby,  voucher;  Dawling,  dcin. 
Shackcis,  IlolderncsH  v. 
Sharpc  v.  Al)b(;y, 
Shelby,   (iarncr  v. 
Sheriff  of  London,  Thf>  Kinff  v. 
Shipton,  Inhabitants  of,   Rex  v. 
Hobcrt,  l{o\  V. 


Sidford.   Wiltshire  v. 

^igourncy  v.  Mo\H, 

,  Lloyd  V. 


326 
327 
327 
91 
125 

160 
371 
37 
526 
59 
39 
267 
354 
72 
27 
315 
41.> 
510 
29 
15,S 
337 
212 
319 
527 


Sikes,  Belcher  t. 
Siordet  v.  Hal), 
Smith  V.  Backwell, 

,  Rex  V. 

,  Richmond  v. 

Smyth,  Bridges  t. 

Soper,  Henley  v. 

South  Carolina  Bank  v.  Case, 

Sparkes  v.  Bell, 

Stead,   Gibbs  v. 

Stephenson,  Hovill  v. 

Steward  v.  Williamson, 

Still,  dem. ;  Raymond,  ten. 

Stott,  Burleigh  v. 

Stoakley,  Crofts  v. 

Stocks,  Aked  v. 

Stourbridge,  Inhabitants  of,  Rex  v. 

Stratton,  Doe  dem.  Tilt  v. 

Street,  Hills  v. 

Strother  v.  Barr, 

Studd,  Jones  v. 

Sugrue,  Allen  v. 

Sutton,  Rex  v. 

,   Riddellv. 

Swaine,  Pratt  v. 

Swann  v.  Earl  of  Falmouth, 

Symes  v.  Rose, 

T. 

Taylor  v.  Lyon, 

Tappcn,  Archbishop  of  Canterbury  v. 
Tcague  v.  Hubbard, 
Tenon  v.  Mars, 
Terrington  v.  Hargreavcs, 
Thomas,  Furnell  v. 
,  V.  Cook, 


Thorpe  v.  Cooper, 
Thrush,  Firth  v. 
Tomlin,  Calvert  v. 
Tucker  v.  Humphrey, 
Turner  v.  Prince, 


^'ale  and  Otiicrs,   vouchees, 
Vcrc  V.  (harden, 
Vickcrs  v.  (iallimorc, 

W. 

Wadsworlh  v.  Gibson, 
Wainflcct,   All  Saints,    Rex  v. 
Wales,  \>' right  v. 
Walton,  rothcrgill  v. 
Warren,  Doc.dcni.  v.  Br."«y, 
,   Culliford  V. 


— ,   Mackic  v. 


>\'asl)l)urn,  in  re. 
Wasp,   Rook  v. 
Watt,  D<)<^  dcin.  Hcnnikfr  v. 
W  alsoii,    Hey  wood  v. 
Watcrhouse,  Marklin  v. 
Wct)l),  dcni.;  I.anP,  ten. 
^\■f■lls  V.  (iiunry, 
Wcllrsley,  He  Crespijny  v. 
Whal'-  V.  I.cnny, 
Whicldon     Keats  v. 


186 

87 

62 
232 
144 
481 
147 
256 
143 
288 
515 
484 

27 
151 
356 

60 
155 

36 
358 
391 
105 
297 
252 
416 
219 
264 
447 


461 
174 
234 
324 
515 
411 
333 
387 
242 
343 
63 
413 


408 
483 
415 


76 
206 
462 
123 
339 
203 
408 
261 
412 
225 

55 
421 
449 
336 
474 
347 
141 


8 


TABLE    OF    CASES. 


M'histler,  Bryan  v. 
AN'hitcoiiib,  Leos  v. 
White,  Maijravc  v. 
>Vliittak.cr  v.  Wliittakcr, 
Whitnash  v.  George, 
A>liyle,    Evans  V, 
Wilcoxon  V.  Nii^lit'mgale, 
Willes  V.  Elliott, 
AViklbor  v.  Kaiiiforth, 
Wilkinson  v.  Hubbard, 

,   Davies  v. 

Williams  v.  Trotheroc, 

,  Rex  V. 

Williamson,  Steward  v. 


2iy 

357 

252 

oo6 

295 

514 

57 

13 

144 

276 

77 

456 

327 

484 


W'illis,  Doe  dem.  Uiion  y. 

Wilson,  Collins  v. 

Wilts,  Justices  of,   Rex  t. 

Wiltshire  v.  Sidford, 

Winter,  Hex  v. 

Withington  v.  Hemng, 

Wolley,  Doe  dem.  Oldham  v. 

Wood  V.  Nunn, 

Worcestershire,  Justices  of,   Rex  v. 

Wright,  Haywood  v. 

,  V.  Wales, 


Yarborough  (Lord),  Gifford  v. 


492 
70 
242 
212 
3'?8 
492 
150 
346 
210 
242 
462 


403 


REPORTS  OF  CASES 


ARGUED  AND  DETERMINED 


IN    THE 


COURT    OF    COMMON    PLEAS 


OTHER  COURTS. 


13r  PEREGRINE  BINGHAM, 

OF  THE  MIDDJ.E  TEMPLE,  ESQ.,   BAUUISTER  AT  LAW. 


VOL.  IV.— Parts  III.  &  IV. 


\n}..  w 


CASES 

ARGUED  AXD  DETERMIXED 

IN    THK 

COURT   OF  COMMON   PLEAS, 

AND 

OTHER  COURTS, 

IN 

MICHAELMAS   TERM, 

In  tlie  Eighth  Year  of  the  Reign  of  George  IV. — 1827, 


MOUNT  V.  HARRISON.— p.  388. 
Abandonment  is  not  necessary  upon  a  loss  in  an  insurance  on  freight. 

Assumpsit  on  a  policy  of  insurance  on  freight,  per  the  ship  Olive 
Branch. 

At  the  trial  before  Park  3.,  London  sittings  after  Trinity  term,  it 
appeared  that  the  Olive  Branch  was  driven  on  shore  in  Table  Bay, 
Cape  of  Good  Hope,  by  a  tremendous  storm,  on  the  2l5t  of  July  1822, 
and  imbedded  eight  feet  in  the  sand  above  high-water  mark,  very  much 
strained  and  damaged  ;  that  the  cargo,  one  third  of  which  was  oa 
board  antl  the  rest  engaged,  was  sent  to  England  by  another  vessel  ; 
that  surveys  were  made,  and  experienced  persons  being  of  opinion 
that  tiic  ship  could  not  be  got  off  except  at  a  ruinous  expencc,  she  wa.s 
sold  by  the  captain  a  week  or  ten  days  after  tlie  stranding;  that  the 
purchasers  got  lier  off  in  about  three  months,  after  several  unsuccessful 
attempts;  and  that  being  then  repaired,  she  afterwards  performed  many 
voyages.  The  captain  effected  the  sale  boufr  /idc,  as  the  best  course  at 
the  time,  for  the  interest  of  all  parties. 

On  the  part  of  the  defendant  it  was  objected,  first,  (hat  there  ought 
to  have  been  an  abandonment  of  the  freight  ;  and,  secondly,  that  as  the 
vessel  was  repaired  by  the  purchasers,  and  despntchpil  on  new  voyages, 
there  could  not  have  been  an  extreme  necessity  for  (lie  sale  effected  by 
the  captain,  in  which  case  only  would  it  have  been  justifiable. 

The  learned  Judge  on  the  authority  of  /r/Zc  v.  lioyal  ICrrhmiget/la- 
surnnre  ('nnipuvy,  S  Taunt.   Tj'i,  and  (irmn  v.  Rni/fil   l-].rch(t)igc.  Jl-i- 


1^  HuuBARD  V.  Jackson.  M.  T.  1827. 

surance  Cotnpany,  G  Taunt.  6S.,  directed  the  jury,  tjnat,  .under  the  cir- 
cumstances of  this  case,  an  abandonment  of  freight  \yas  not  necessary, 
and  left  it  for  tlieni  to  determiiic  whellier  the  captain  was  justified  in  sell- 
ing the  ship. 

A  verdict  having  been  found  for  the  plaintiff", 

Taddy  Serjt.  moved  for  a  new  trial,  on  the  objections  above  stated. 
There  ought  to  have  been  an  abandonment  of  the  freight.  A  contract 
of  insurance  is  only  a  contract  for  an  indemnity;  but  the  insured  re- 
ceives more  than  an  indemnity  if  he  obtains  the  amount  of  the  freight, 
without  the  expence  of  conveying  the  cargo,  and  his  policy  is,  in  effect, 
a  wagering  policy.  Therefore  in  Parmeler  \.  Todhunfer,  \  Q^niYth. 
541.,  Lord  Elleiihoroiigh  held,  that  in  the  case  of  an  insurance  on 
freight,  the  insured  could  not  recover  as  for  a  total  loss  without  an 
abandonment,  if  the  goods  were  in  existence,  although  both  ship  and 
cargo  were  sold.  In  Idle  v.  Royal  Exchange  Jlssurance  Company^ 
and  Green  v.  Royal  Exchange  Assurance  Company,  it  was  only 
determined  that  an  abandonment  was  not  necessary  and  that  a  sale  of 
the  iShip  was  justifiable,  under  the  peculiar  circumstances  of  those  cases 
respectively. 

Park  J.  I  think  there  ought  not  to  be  any  new  trial.  As  to  the 
abandonment,  confining  my  opinion  to  the  circumstances  of  this  case, 
I  think  it  was  not  necessary,  and  I  fully  concur  in  the  decision  of  Idle 
V.  Royal  Exchange  Jlssuran.ce  Company.  That  decision  is  only 
met  by  the  nisi  prius  case  of  Parmeter  v.  Todhunier.  And  Gibbs 
C.  J.,  when  that  case  was  cited  in  Green  v.  Royal  Exchange  ^Assur- 
ance Company,  said,  he  could  not  understand  what  was  to  be  aban- 
doned. If,  as  has  been  insinuated,  the  not  requiring  an  abandonment 
should  lead  to  fraud,  that  may  be  enquired  of  in  the  particular  case.  As 
to  the  propriety  of  the  sale,  I  thought  it  so  clear  that  I  did  not  press 
It  on  the  jury,  and  they  without  hesitation  found  for  the  plaintiff. 

BuRUOUGH  J.  The  necessity  of  the  sale  was  altogether  a  question 
for  the  jury.  As  to  the  abandonment,  I  thought  in  the  case  of  IdlcY. 
Royal  Exchange  Jlssrirance  Company,  that  there  was  nothing  to 
abandon  in  an  insurance  on  freight,  and  I  am  of  the  same  opinion  still. 

Gaselee  J.  I  am  of  the  same  opinion  on  both  points.  With  res- 
pect to  the  freight  there  was  nothing  to  abandon,  for  the  goods  were 
immediately  put  on  board  another  ship,  and  the  underwriters  could 
have  gained  nothing  had  an  abardonment  been  made. 

Rule  refused. 


HUBBARD  V.  JACKSON.— p.  390. 

A  bill  payable  to  the  order  of  tlie  drawer  having  been  dishonoured  by  the  ac- 
ceptor and  paid  by  the  drawer  when  due,  Held,  that  the  drawer  niiii,ht  indorse 
it  over  a  year  and  a  half  afterwards,  and  that  his  indorsee  might  recover  against 
the  acceptor. 

Assumpsit  on  a  bill  of  exchange,  drawn  December  25,  1S20,  by 
Melville  upon  and  accepted  by  the  defendant  for  30/..  three  months 
after  date,  payable  to  the  order  of  Melville. 


4  Bingham,  390.  13 

This  bill,  before,  it  was  due,  Melville  indorsed  to  Wallace,  and  the 
defendant  having  dishonoured  it,  Wallace,  in  1821,  recovered  the 
amount  of  MelvUle^  with  costs.  About  a  year  and  a  half  afterwards, 
Melville  indorsed  it  to  the  plaintiff,  who  now  sued  the  defendant. 

A  verdict  having  been  found  for  the  plaintiff  at  the  Guildhall  sittings 
after  last  term,  . 

Storks  Serjt.  ftioved  to  set  aside  the  verdict,  and  enter  a  nonsuit,  or 
to  have  a  new  trial,  on  the  ground  that  INIelville  had  no  right  to  nego- 
tiate the  bill  again  after  it  was  overdue  and  paid,  if  such  negotiation 
would  make  any  of  the  parties  liable  who  would  otherwise  have  been 
discharged.  Beck  v.  liobley,  1  H,  Bl.  S9,  n.  He  admitted,  however, 
that  in  that  case  the  bill  was  drawn  payable  to  the  order  of  a  third  per- 
son, and  that  in  Callow  v.  Lawrence,  3  M.  &  S.  95,  it  was  holden  that 
an  indorsee  who  pays  a  bill  may  indorse  or  negotiate  it. 

The  Court  thought  the  colSco^  Callow  v.  Lawrence  in  point,  and  re- 
ferred to  the  language  of  Lord  Ellenboroiigh,  who  said,  *' A  bill  of 
exchange  is  negotiable  ad  infinitum  until  it  has  been  paid  by  or  dis- 
charged on  behalf  of  the  acceptor.  If  the  drawer  have  paid  the  bill,  it 
seems  that  he  may  sue  the  acceptor  upon  the  bill  ;  and  if,  instead  of  su- 
ing the  acceptor,  he  put  it  into  circulation  upon  his  own  indorsement 
only,  it  does  not  prejudice  any  of  the  other  parties  who  have  indorsed 
the  bill,  that  the  holder  should  be  at  liberty  to  sue  the  acceptor.  The 
case  would  be  different  if  the  circulation  of  the  bill  would  have  the  effect 
of  prejudicing  any  of  the  indorsers. " 

Rule  refused. 


WILLES  and  Another,  Assignees  of  ELLIOTT,   v.  ELLIOTT.— 

^  p.  392. 

\\  here  an  insolvent  dies  after  petition  and  assignment  to  liis  provisional  assignee^ 
iMit  before  examination  and  assignment  to  his  assignees  in  chief,  Held,  that  the 
assignees  in  chief  take,  nevertheless,  all  the  property  assigned  by  the  provi- 
sional assignee. 


HOWARD  V.   BROWN.— p.  393. 

An  affidavit  of  delit  sworn  Ixfore  a  commissioner  in  tlie  country  is  insufficient,  if 
it  do  not  state  the  party  before  whom  it  is  sworn  to  be  a  commissioner. 

Ri:ssEM.  Scrjt.  moved  to  cancel  abail-ljond  in  Ihisoause  on  the  ground 
that  the  jurat  of  the  aflidavit  to  hold  to  bail  (which  had  been  sworn  in 
the  country)  did  not  state  the  person  before  whom  it  was  sworn  to  be  a 
commissioner,  as  it  ought  to  have  done.      Jicx  v.  Ifarc,  13  East,  1S9. 

H'ildc  Scrit.  The  affidavit  is  enlilled  in  tliis  Court,  signed  with  tlm 
commissioner's  name,  anil  the  Court  has  tlie  means  of  knowing  who  arc* 
its  own  commissioners.  Hex  v.  Hare  was  a  criminal  j)rocee(ling,  and 
the  affidavit  was  not  entitled  of  any  court.  Al  all  events,  the  Court  will 
allow  a  snj)plemcntal  aflidavit.      lint 


14     Blackburn  v.   Blackburn.  M.  T.  1827. 

The  Court  refused  a  Bupplcmenlal  afl'ulavit,  and,  on  the  authority  of 
/i*f.r  V.  Hare,  made  the  rule 

Absohite. 


LIMERICK  and  W/^TERFORD  Railway  Company  v.  FRASER.— 

p.  394. 

Plaintiffs,  an  Irish  company,  whose  concerns  were  all  carried  on  in  Ireland,  were 
compelled  to  give  security  for  costs,  notwithstanding  an  affidavit  that  they  had 
money  in  a  banker's  hands  in  London,  and  that  many  of  the  members  resided 
in  England. 

INIerewether  Serjt.  showed  cause  against  a  rule  calling  on  the  plain- 
tiffs to  give  security  for  costs,  upon  an  affidavit  that  the  company  had 
3000/.  in  a  bank  in  London,  and  that  nearly  all  the  members  of  the 
company  resided  in  England. 

JJllde  Serjt.,  who  had  obtained  the  rule  upon  an  affidavit  that  all  the 
concerns  of  the  company  were  carried  on  in  Ireland,  and  that  it  had  no 
tangible  property  in  England,  insisted  that  the  money  alleged  to  be  in 
the  London  banker's  hands  was  not  a  sufficient  answer  to  the  applica- 
tion; and 

The  Court  being  of  this  opinion,  the  rule  was  made 

Absolute. 


SAMUEL  BLACKBURN  v.  JOHN  BLACKBURN.— p.  395. 

A  jury,  directed  to  find  whether  a  libel  submitted  to  their  consideration  were  a 
privileged  communication,  and  if  so,  whether  it  were  attended  with  express 
malice,  found  for  the  plaintiff  50/.  damages,  and  that  the  defendant  was  not 
actuated  by  express  malice  :  Held,  that  the  plaintiff  was  entitled  to  retain  his 
damages. 

Action  on  the  case  for  a  libel,  charging  the  plaintiff  with  having  com- 
mitted a  forgery,  to  whicli  the  defendant  pleaded,  ss  a  justification,  that 
the  plaintiff  had  committed  a  forgery  in  the  manner  charged.  The  de- 
claration contained  no  allegation  of  special  damage. 

At  the  trial  before  Gaselee  J.,  London  sittings  after  Trinity  term  last, 
it  appeared  that,  in  the  beginning  of  1827,  the  plaintiff,  a  dissenting 
minister  and  candidate  for  the  charge  of  a  congregation,  finding  that  ru- 
mours had  been  circulated  to  his  prejudice,  instituted  an  enquiry,  which 
terminated  in  his  friends  printing  and  circulating  among  the  congrega- 
tion the  following  circular,  the  statements  in  which,  touching  the  alleged 
forgery,  and  the  conduct  of  the  defendant,  were  fully  substantiated  by 
the  evidence  adduced  at  the  trial. 

Bcthnal  Green,  15th  February  IS27. 
'<  Dear  Sir, 
•'  The  oI)ject  for  which  the  following  statement  is  transmitted  to  you 
is  obvious,  and  therefore   requires  no  comment  :   it   is  sent  in  the  hope 


4  Bingham,  395.  15 

that  if  the  unfounded  cahimnies  it  refutes  should  have  reached  you,  the 
minister  they  were  designed  to  injure  may  be  restored  to  the  possession 
of  the  unimpeachable  reputation  both  in  the  church  and  in  the  world  we 
are  persuaded  he  deserves. 

'<  We  remain,  Dear  Sir, 
*'  Your  affectionate  friends  and  servants, 

"  John  Kello, 
Minister  of  Bethnal  Green  Meeting. 

^^  Robert  Garrett,  ?    ta 

,,  T  J,      -L^-  f    Deacons. 

''  John  At?ig,  ^ 

"The  increasing  infirmities  of  the  Reverend  John  Kello  having  ren- 
dered it  expedient  that  regular  assistance  in  his  public  labours  should 
be  procured,  occasional  supplies  were  engaged  for  part  of  the  Lord's 
day,  who  met  with  various  degrees  of  acceptance  ;  and  some  painful 
differences  of  opinion  having  arisen  respecting  the  right  of  procuring 
the  assistance,  which  all  admitted  to  be  necessary,  led  to  the  resignation 
of  the  deaconship  by  Mr.  Briscoe.  In  this  state  of  things,  and  subse- 
quent to  Mr.  B.'s  resignation,  the  Reverend  Samuel  Blackburn  was  in- 
vited in  August  last  to  preach  a  single  sermon,  which  was  so  much  ap- 
proved as  to  induce  an  immediate  application  to  him  by  the  Reverend 
J.  Kello  and  the  deacons  for  his  future  services,  and  thus  he  was  enga- 
ged from  Sabbath  to  Sabbath  with  increasing  approbation,  until,  at  the 
expiration  of  two  months,  a  meeting  of  the  church  and  congregation 
was  publicly  convened,  to  consider  of  the  propriety  of  inviting  him  to 
supply  the  pulpit  once  on  the  Lord's  day  for  a  specific  period. 

"At  this  meeting  Mr.  Briscoe  and  Mr.  R.  L.  Sturtevant  were  pre- 
sent, and  made  several  vague  insinuations  against  the  private  character 
of  Mr.  Blackburn,  which  led  to  the  postponement  of  the  business  for 
four  days  to  give  time  for  further  enquiries.  Having  received  the 
most  unexceptionable  and  satisfacftory  testimonies  from  those  who  had 
known  Mr.  Blackburn  intimately  for  many  years,  added  to  the  fact 
that  he  had  lived  in  great  respectabifity  in  the  immediate  neighbour- 
hood for  the  last  nine  years;  and  as  the  opposing  parties  absented  them- 
selves from  the  second  meeting,  by  which  it  might  be  inferred,  they 
admitted  their  previous  opinions  to  be  unfounded,  an  unanimous  invi- 
tation for  three  months  was  agreed  to  and  transmitted  to  Mr.  Black- 
burn, signed  by  the  aged  minister  and  deacons  on  behalf  of  the  church 
and  congregation.  From  the  increasing  number  of  hearers,  and  some 
pleasing  indications  of  usefulness  which  had  resulted  from  his  ministry 
during  these  three  months,  towards  the  close  of  that  period  another 
public  meeting  was  convened,  which  was  more  numerously  attended 
than  the  former,  and  an  invitation  for  an  additional  three  months  was 
unanimously  agreed  to. 

"The  Reverend  J.  Kello,  in  conveying  to  Mr.  Blackburn  the  re- 
quest of  the  meeting,  added,  *  if  the  first  invitation  was  unanimous,  the 
second  is  enthusiastic.'  It  was  r.ow  that  unpleasant  rumours,  which 
were  traced  to  Mr.  R.  L.  Sturtevant.  began  to  ncatc  uneasiness,  and 
Mr.  fiarrett,  the  senior  deacon,  wailed  on  him,,  and  enquired  what 
grounds  he  had  for  the  reports  he  had  circulated  respecting  Mr.  Black- 


16  lil,ACKBUu^   v.  Blackuurn.   M.  T.  1827. 

\)uru  ?  The  reply  ol"  Mr.  Stiirtevaiit  was,  '  Mr.  lilackburn  lias  put  his 
uncle's  name  to  a  hill  ol'  exchange,  which  he  was  obliged  to  pay  to  pre- 
vent him  from  being  prosecuted  ;'  and  added  some  other  circumstances, 
which,  if  true,  involved  the  moral  consistency  of  Mr.  Blackburn.  The 
result  of  this  conference  was  communicated  to  the  Reverend  J.  Kello, 
who  informed  Mr.  Blackburn  of  the  serious  imputations  cast  upon  him. 
"  No  sooner  was  the  communication  made  to  Mr.  B.  than  he  sought 
an  interview  with  INIr.  R.  L.  Sturtevant,  and  entreated  him  to  accom- 
pany him  instantly  to  his  uncle,  JNIr.  J.  Blackburn,  No.  126,  Minories, 
with  whom  he  had  held  no  sort  of  intercourse  for  the  last  twelve  years. 
They  went  accordingly ;  and  the  Reverend  S.  Blackburn,  having  as- 
certained that  Mr.  Sturtevant  had  really  received  from  Mr.  J.  Black- 
burn some  communications  calculated  to  induce  him  to  suppose  that  the 
imputation  was  well  founded,  a  meeting  was  arranged  for  the  following 
Thursday  ;  at  which  were  present,  Mr.  Sturtevant,  senior,  Mr.  R.  L. 
Sturtevant,  junior,  Messrs.  Garrett  and  King  (the  deacons  of  the  church), 
and  INIr.  J.  Jilackburn,  from  whom  the  injurious  report  had  originated, 
and  who  was  now  requested  to  produce  the  bill  on  which  he  had  rested 
his  insinuations  of  fraud,  or  forgery,  or  both. 

"  It  is  not  for  man  to  judge  the  motives  of  his  fellow-men,  they  can 
onl}'  be  known  to  God.  The  following,  however,  are  the  facts,  as 
clearly  developed  at  this  meeting  :- — when  Mr.  John  Blackburn  was  re- 
quested to  produce  the  bill,  he  affected  great  reluctance,  cautioned  his 
nephew,  the  Rev.  Mr.  S.  Blackburn,  who  appeared  impatient  for  its 
production,  that  he  would  not  be  answerable  for  the  consequences  if  it 
were  produced,  and,  in  fact,  led  every  person  present  to  the  painful 
conclusion,  that  the  document  would  confirm  the  charges,  and  justify 
those  who  had  brought  it  forward.  At  length  the  bill  was  exhibited, 
and  was  found  to  be  a  simple  bill  of  exchange  drawn  thirteen  years  ago, 
accepted  by  Mr.  S.  Blackburn,  and  made  payable  at  No.  126,  Minories, 
his  uncle's  residence,  where  he  occasionally  resided  when  in  town,  the 
necessary  funds  to  meet  the  payment  of  the  bill,  except  nine  shillings, 
being  also  sent  by  him  to  his  uncle  before  the  bill  became  due,  in  a  let- 
ter, which  was  also  produced,  statmg  that  such  bill  would  be  presented, 
and  requesting  that  it  might  be  taken  care  of  till  he  came  to  town.  In 
fact,  the  whole  transaction  was  honourable  and  regular,  and  proved  no- 
thing but  the  evil  disposition  of  the  individual  who  could  attempt  to  ex- 
tract from  it  any  other  meaning. 

'*In  consideration  of  Mr.  R.  L.  Sturtevant  having  received  the  im- 
pression from  Mr.  J.  Blackburn  (though  not  expressed  in  language  suffi- 
ciently explicit  to  make  him  legally  responsible),  and  having  consented 
to  repair  the  injury  as  much  as  possible  by  publishing  this  refutation, 
and  offering  his  apology,  the  Rev.  S.  Blackburn  has  consented  to  forego 
the  legal  proceedings  he  had  commenced  against  him,  he  having  had  no 
object  in  taking  such  a  course,  but  the  complete  vindication  of  his  cha- 
racter from  the  aspersions  cast  upon  it. 

*'  Robert  Garrett. 
'*  John  King. 
•-  S.  Sturtcfvant. 
'  Witness,   William  Brown. 
^' Dated  this  1,5th  Fcbruarv.  1827. 


4  Bingham,  395.  IT 

"I,  Richard  L.  Sturtevant,  hereby  express  my  deep  regret  for  hav- 
ing been  so  far  imposed  on  by  the  representations  of  Mr.  J.  Blackburn, 
of  No,  126  Minories,  (the  uncle  of  the  Rev.  S.  Blackburn),  as  to  make 
the  injurious  and  unfounded  imputations  referred  to  in  the  foregoing 
statement,  which  I  admit  to  be  a  correct  representation  of  the  facts  and 
circumstances  it  professes  to  explain;  and  1  sincerely  hope  it  will  have 
the  intended  effect  of  completely  removing  from  the  said  Rev.  S.  Black- 
burn's character  any  suspicions  which  may  have  attached  to  it  in  conse- 
quence of  such  imputations, 

<'R.  L.  Sturtevant. 

'^Witness,  William  Brown. 
"Dated  this  15th  February  1827." 

Three  months  after  the  circulation  of  this  paper,  the  defendant  ad- 
dressed the  following  letter,  which  was  the  libel  complained  of,  to  Messrs. 
Garret  and  King,  and  caused  it  to  be  delivered  to  them;  in  consequence 
of  which  the  plaintiff  was  removed  from  the  ministry  of  the  congregation 
to  which  he  was  attached,  and  the  present  action  was  commenced. 

*'To  the  Rev.   John  Kello,  and  IVIessrs.   Garrett  and  King,  the  pastor 
and  deacons  of  the  independent  church  at  Bethnal  Green. 
"Gentlemen, 

"By  a  printed  paper  which  you  have  circulated,  bearing  the  date  of 
the  15th  February  1S27,  you  have  published  a  statement  respecting  my 
conduct  which  is  so  untrue  in  point  of  fact,  and  so  defamatory  in  its  ten- 
dency, that  I  have  the  assurance  of  my  legal  adviser  that  I  could  success- 
fully prosecute  you  for  a  mischievous  libel;  I  wish  not,  however,  to  re- 
sort to  a  mode  of  justification  which,  amongst  believers,  is  forbidden  by 
apostolical  authority,  especially  as  I  anticipate  that  when  you  are  in  pos- 
session of  the  facts  I  have  to  communicate,  that  you  will,  as  becometh 
Christians,  confess  your  mistake,  and  retract  the  injurious  statement  you 
have  circulated  against  me.  And  here  permit  me  to  premise,  that  how- 
ever it  may  be  insinuated,  that  private  and  unworthy  motives  have  excit- 
ed my  opposition  to  the  Rev.  S.  Blackburn,  I  rejoice  that  I  can  appeal 
to  the  searcher  of  hearts.  My  only  consideration  has  been  what  may 
best  promote  the  real  interest  of  truth  and  holiness,  and  the  real  interest 
of  the  kingdom  of  Christ;  indeed,  to  every  considerate  mind,  it  must  ap- 
pear reasonable  that  I  should  not  needlessly  desire  to  involve  one  who 
bears  my  name  and  partakes  of  my  blood,  in  a  reproach  which  must  ne- 
cessarily lessen  the  general  respectability  of  my  family  in  the  opinion  of 
all  those  who  may  be  informed  of  the  exposure.  But  dear  as  my  name 
and  reputation  may  be,  yet  I  trust  the  cause  of  Christ  is  still  more  dear 
to  me,  and  solicitude  for  its  interest,  in  connection  with  yoin-  church,  has 
involved  me  in  this  most  painful,  though  necessary  vindication. 

"Let  me,  then,  in  the  first  place,  remind  you,  that  I  did  not  seek  for 
an  opportunity  to  expose  the  conduct  of  the  Rev.  S.  Blackburn,  but  that 
Mr,  R.  Sturtevant,  as  a  member  of  the  church  about  to  choose  that  re- 
verend person  their  co-pastor,  applied  to  me  in  all  the  confidence  of  old 
acquaintance,  to  inform  him  what  were  my  views  of  that  individual's 
character:  now,  as  I  consider  it  as  one  of  the  most  fearful  calamities  that 
ran  befall  a  church  of  Christ  to  receive  as  ils  pastor  a  man  of  questionable 
character,  I  did,  in  the  confiding  frankness  of  Christian  intercourse,  and 
upon  his  promise  to  keep  the  niattrr  sofrct,  inform  him  of  that  transac- 

VOL.    XV.  .'{ 


18       Bl.ACKHUKN  i;.  Bl.ACKUUUN.  M.  T.  1827. 

tion  to  whicli  j'our  letter  alludes,  and  whicli,  associated  in  my  mind 
with  other  facts,  has  produced  impressions  concerning  the  moral  habits 
of  the  party  concerned,  which  I  will  not  now  describe. 

<'I  had,  indeed,  received  statements  from  Canterbury  and  Luton,  re- 
specting the  character  of  the  reverend  gentleman  whilst  travelling  in  the 
Wcsleyan  JNIelhodist  connection,  no  way  to  his  honour,  but  I  could  not 
prove  them;  statements  from  the  counties  of  Nottingham  and  Derby 
(unsought  for  by  me),  upon  the  authority  of  some  of  the  most  respecta- 
ble ministers  in  those  districts,  that  the  conduct  of  the  individual  in 
question,  when  an  independent  minister  in  j,heir  neighbourhood,  was 
not  irreproachable,  but  then  I  could  not  substantiate  them. 

*'Yet  these  statements,  supported  by  creditable  testimony,  together 
with  the  facts  in  my  own  possession,  produced  an  amount  of  moral  evi- 
dence, the  force  of  which  I  shall  feel  as  long  as  I  live;  and,  therefore,  I 
did  think  it  a  duty  to  my  friend  Sturtevant,  and  to  the  church  at  Beth- 
nal  Green,  to  put  him  in  possession  of  the  facts  of  that  bill  transaction, 
which,  in  my  own  judgment,  includes  both  falsehood  and  fraud.  How 
my  confidence  was  betrayed  by  Mr.  R.  L.  Sturtevant  you  well  know, 
and  that  I  was  compelled  to  maintain  my  own  veracity  by  producing  the 
bill  in  question  at  the  meeting  you  describe,  on  which  1  attended,  with- 
out even  a  friend  to  witness  for  me  the  statements  which  were  made. 
The  transactions  of  that  evening  you  thus  describe  : — 

*'  'A  meeting  was  arranged  for  the  following  Thursday,  at  which  were 
present  Mr.  Sturtevant,  senior,  Mr.  R.  L.  Sturtevant,  Messsrs.  Garrett 
and  King,  the  deacons  of  Mr.  Kello's  church,  and  Mr.  J.  Blackburn, 
from  whom  the  injurious  report  had  originated,  and  who  was  now  re- 
quested to  produce  the  bill  on  which  he  had  rested  his  insinuations  of 
fraud  or  forgery,  or  both.  It  is  not  for  man  to  judge  the  motives  of  his 
fellow-men;  they  can  only  be  known  to  God.  The  following,  however, 
are  the  facts,  as  clearly  developed  at  this  meeting: — When  Mr.  J.  Black- 
burn was  requested  to  produce  the  bill,  he  affected  great  reluctance,  cau- 
tioned his  nejihew,  the  Rev.  S.  Blackburn  (who  appeared  impatient  for 
its  production),  that  he  woidd  not  be  answerable  for  the  consequences  if 
it  were  produced;  and,  in  fact,  he  led  every  person  present  to  the  pain- 
ful conclusion,  that  the  document  would  confirm  the  charge,  and  justify 
those  who  had  brought  it  forward.  At  length  the  bill  was  exhibited, 
and  was  found  to  be  a  simple  bill  of  exchange,  drawn  thirteen  years  ago, 
accepted  b}'  INIr.  Samuel  Blackburn^  and  made  payable  at  No.  126.  Mi- 
nories,  his  uncle's  residence,  where  he  occasionally  resided  when  in 
town;  the  necessary  funds  to  meet  the  payment  of  the  bill  (except  9^.) 
being  also  sent  by  him  to  his  uncle  before  the  bill  became  due,  in  a  let- 
ter, which  was  also  produced,  stating  such  a  bill  would  be  presented, 
and  requesting  it  might  be  taken  care  of  till  he  came  to  town.  In  fact, 
the  whole  transaction  was  honourable  and  regular,  and  proved  nothing 
but  the  evil  disposition  of  tlie  individual  who  could  attempt  to  extract 
from  it  any  other  meaning.' 

"I  admit  your  statement  in  the  general,  but  deny  that  the  reverend 
gentleman  ever  resided  in  my  house,  or  ever  slept  there  more  than  one 
night.  If  you  recollect,  I  cautioned  your  reverend  friend  respecting  the 
consequences,  because  I  believed  it  was  fraudulent  in  its  character,  and 
might  involve  penal  results  of  no  desirable  kind :  how  far  my  impressions 
were  correct  you  will  learn  from  the  opinion  of  Thomas  Denman.  Esq., 


4  Bingham,  395.  19 

the  Common  Serjeant  of  London,  who,  as  one  of  the  metropolitan  judges, 
may  be  supposed  competent  to  decide  that  question. 

''Permit  me,  however,  first  to  lay  before  you  the  case  which  has  been 
submitted  to  that  learned  gentleman,  the  facts  of  which  can  be  substan- 
tiated on  oath. 

'Case. 

< Samuel  Blackburn  being  indebted  to  Mr.  Brackly  of  Canterbury,  in 
the  sum  of  20/.  9,s.  for  goods  sold,  gave  to  him  the  following  bill: — 

'London,  July  2Sth,  1814. 
<Two  months  afterdate,  pay  to  me  or  my  order,  the  sum  of  twenty 
pounds  nine  shillings  sterling. 

'^20     9     0  'Samuel  Blackburn. 

'To  Mr.  Samuel  Blackburn,  12G.  Minories. 
'Accepted,  Samuel  Blackburn. 

•The  bill  and  acceptance  is  in  the  hand-writing  of  the  drawer,  who  at 
the  time  he  gave  the  bill  represented  to  Mr.  Brackly  that  Mr.  Samuel 
Blackburn,  the  pretended  acceptor,  was  his  uncle,  and  in  the  receipt  of 
rents  for  him.  This  was  in  part  false,  for  although  his  uncle  did  live  at 
12G.  Minories,  at  which  place  the  bill  was  addressed,  his  name  was  not 
Samuel  Blackburn,  but  John  Blackburn,  and  he  was  not  in  the  receipt 
of  any  rents  for  his  nephew,  or  indebted  to  him  in  any  sum;  nor  did  he 
give  him  any  authority  to  draw  the  bill  upon  him.  By  the  day  the  bill 
became  due,  Samuel  Blackburn  sent  to  his  uncle  John  Blackburn  the 
amount  of  the  bill  (less  nine  shillingsl,  which  when  presented  was  tak- 
en up  by  the  uncle  with  the  money  sent  him  by  the  nephew  for  that 
purpose,  and  the  bill  is  now  in  the  possession  of  the  uncle.  It  will  be  per- 
ceived that  the  transaction  took  place  nearly  thirteen  years  since;  but 
circumstances  have  recently  transpired  which  make  it  necessary  for  the 
uncle  of  the  drawer  and  acceptor  of  the  bill  to  take  an  opinion  upon  the 
following  points.' 

"On  this  case  Mr.  Denman's  opinion  was  requested  on  several  points, 
but  it  is  only  necessary  for  me  to  state  to  you  the  first  question  proposed, 
viz. 

"Whether  the  acceptance  was  a  forgery  of  Samuel  Blackburn,  he 
drawing  and  accepting  the  bill,  and  negotiating  the  same  under  the  false 
representation  belbrc  inciiiioned? 

'Answer. — On  tlie  principle  of  Mead  v.  Younp;,  4  T.  U.  2S.,  I  think 
the  acceptance  written  on  the  bill,  under  the  circumstances  stated,  was  a 
forgery.' 

"To  this  measure  have  I  been  driven  in  my  own  (h.fence  by  your  in- 
discreet zeal,  and  with  you  must  rest  all  llic  consequences  of  this  expo- 
sure. I  presume,  however,  gentlemen,  that  this  judicial  opinion  will 
cause  you  to  feel,  that  the  statement  to  which  you  have  lent  your  sanc- 
tion, 'that  the  whole  transaction  was  honourable  and  regular,'  is  some- 
what (Idubtful;  and  that  your  charges  of  'inqiosition  and  evil  disposition' 
arc  as  groundless  as  they  arc  injurious.  I  now  then  .sitlcmnly  call  upon 
you  as  the  olficers  of  a  Church  of  Christ,  who  ere  long  will  be  our  Judge, 
to  take  those  measures  which  Christian  cfpiity  demands,  to  remove  from 
my  character  those  aspersions,  which,  without  provocation,  you  have 
cast  upon  it.      I  do  not  wish  to  publish  these  things  to  the  world;  it  is 


20  Rlackhurn   v.  Blackburn.  M.  T.  1827. 

fearful  enough  that  the  Churcii  slioultl  hear  tliose  things  which  would 
make  the  enemies  of  gotUiness  to  triumph,  but  from  you  they  could  not 
be  withheld. 

"Respecting  your  reverend  friend,  I  wish  only  to  add,  that  if  he 
were  only  prepared  with  the  ingenuousness  of  Christian  repentance  to 
confess  his  past  indiscretions  and  sins,  no  one  would  rejoice  more  sin- 
cerely in  the  evidence  of  his  penitence,  and  in  the  prospect  of  his  useful- 
ness, than  myself;  but  if  he  proudly  denies  facts  which  are  notoriously 
true,  I  can  only  anticipate,  that  he  will  be  found  like  *evil  men  and  se- 
ducers, who  wax  worse  and  worse.'     Waiting  your  reply, 

*'  I  am.  Gentlemen, 

*']Minories,  "Your  faithful  Servant, 

"May  19,  1827.  <«John  Blackburn." 

Brackly,  who  was  called  as  a  witness  on  the  trial,  said  he  recollected 
no  more  of  the  transaction  than  that  he  had  never  required  of  the  plain- 
tiff to  have  a  bill  on  any  other  person.  But  In  a  letter  written  in  Brack- 
ly's  name  in  1S15  (and  received  in  evidence  after  a  contest  touching  its 
admissibility)  it  was  stated, — in  answer  to  enquiries  addressed  to  Brack- 
ly by  the  defendant  shortly  after  differences  had  first  arisen  between  the 
defendant  and  the  plaintiff,  that  the  plaintiff,  upon  occasion  of  giving 
the  bill,  had  said  the  acceptor  was  his  uncle,  and  in  the  receipt  of  rents 
for  him.  The  signatures  of  the  drawer  and  acceptor  of  the  bill  were 
both  in  the  same  hand-writing,  as  well  as  the  same  name. 

Gaselee  J.  lelt  it  to  the  jury  to  determine  whether  the  defendant's 
letter  was  a  confidential  communication,  made  bona  fide  in  answer  to 
the  enquiries  instituted,  touching  the  plaintiff's  conduct,  and  if  so,  whe- 
ther it  was  or  was  not  accompanied  with  express  malice,  because  in  the 
event  of  the  jury's  finding  express  malice,  the  defendant  would  be  re- 
sponsible, even  though  the  court  should  be  of  opinion  that  the  communi- 
cation was  privileged.  If  the  jury  should  be  of  opinion  that  the  commu- 
nication was  not  called  for,  they  would  find  for  the  plaintiff. 

The  jury  found  for  the  plaintiff,  damages  50/.  They  found  also  that 
he  was  not  guilty  of  forgery,  and  that  the  defendant  was  not  actuated  by 
express  malice;  whereupon 

Cross  Serjt.  moved  for  a  rule,  calling  on  the  plaintiff  to  show  cause 
why  the  verdict  should  not  be  entered  for  the  defendant  on  the  general 
issue,  and  for  the  plaintiff  on  the  special  pleas,  and  the  award  of  damages 
be  set  aside;  or  why  the  verdict  should  not  be  set  aside  and  a  new  trial 
be  had.  The  ground  of  the  motion  was  as  follows: — Malice  is  the  gist 
of  an  action  for  libel,  Bull.  N.  P.  8,  9  ;  and  though,  when  there  is  no 
finding  to  the  contrary,  malice  may  be  implied  from  language  calculated 
to  do  an  injury,  yet  such  implication  can  never  be  raised  contrary  to  an 
express  finding  that  no  malice  existed.  No  distinction  can  be  raised 
between  implied  and  express  malice,  or  malice  in  law  and  malice  in  fact, 
except  in  the  different  degrees  of  evidence  required  to  establish  them, 
the  latter  being  apparent,  the  former,  as  it  were,  latent;  but  the  sufficien- 
cy of  the  evidence  is  plainly  a  question  for  the  jury.  The  jury  in  the 
present  case  having  found  there  was  no  express  malice,  have  determined 
upon  the  evidence,  and  have,  in  effect,  found  for  the  defendant  on  the 
general  issue;  the  award  of  damages  being  inconsistent  with  the  finding 
of  no  malice,  more  especially  as  no  special  damage  has  been  alleged. 


4  Bingham,  395.  21 

A  rule  nhl  having  been  granted, 

fVilde  Serjt. ,  on  showing  cause,  contended,  that  the  first  and  chief 
question  left  to  the  jury  having  been,  whether  the  defendant's  communi- 
cation was  confidential  and  privileged?  the  verdict  of  the  jury  on  the 
general  issue,  and  the  award  of  damages,  had  reference  to  that  question, 
and  was,  in  effect,  a  finding  that  the  communication  was  not  privileged; 
in  which  case  the  expressions  employed  were  such  as  to  entitle  the 
plaintifi' to  damages,  even  though  they  were  not  the  result  of  express  ma- 
lice. They  were,  indeed,  such,  that  if  accompanied  with  malice,  the 
plaintiff  would  have  been  equally  entitled  to  recover,  even  if  the  com- 
munication had  been  found  a  privileged  one;  and  it  was  manifestly  with 
a  view  to  the  possible  determination  of  the  Court  on  the  subject  of  privi- 
leged communication,  that  the  jury  had  considered  the  question  of  express 
malice.  As  there  could  be  no  pretence  for  calling  the  defendant's  un- 
solicited letter  a  privileged  communication,  the  plaintiff  was  entitled  to 
recover  for  the  injury  unavoidably  resulting  from  so  mischievous  a  charge, 
even  though  the  defendant  were  not  actuated  by  malice.  Brummage 
v.  Prosser.  4  B.  &  C.  247. 

Cross  Serjt.,  in  support  of  his  rule,  maintained,  that  it  was  impossi- 
ble to  ascertain  with  what  view  the  jury  had  come  to  their  finding  on 
tiie  subject  of  malice  ;  but  that  finding,  being  unequivocal,  was  incom- 
patible with  a  verdict  for  the  plaintiff  in  an  action  for  a  libel,  and  he  re- 
ferred again  to  the  cases  in  Bui.  N.  P.  8,  9  ;  to  3  Bl.  Com.  p.  125, 
and  Christian's  note  thereon,  to  show  that  express  malice  must  be 
proved  to  render  a  part}^  liable  to  an  action. 

At  the  request  of  the  Court  Mr.  Denman's  opinion  was  produced  :  it 
contained  several  passages  omitted  in  the  defendant's  letter,  and,  among  , 
others,  an  intimation  that  no  one  would  believe  a  forgery  had  been  com- 
mitted under  the  circumstances  stated,  and  that  a  prosecution  would  cer- 
tainly fail. 

Park  J.  I  feel  no  difficulty  in  tiie  decision  of  this  case,  and  am  of 
opinion  that  the  rule  must  be  discharged.  The  point  to  be  determined 
has  been  most  accurately  left  to  the  jury.  Was  this  a  privileged  com- 
munication or  not  ?  and  if  it  was,  was  it  attended  with  malice  ?  because, 
if  so,  the  defendant  is  not  excused,  notwithstanding  the  privilege.  Giv- 
ing an  answer  to  enquiries  touching  the  character  of  a  servant,  or  of  a 
tradesman,  are  privileged  communications,  but  if  express  malice  be 
shown,  they  arc  not  protected.  In  Kdmondson  v.  Stephenson,  Bull. 
N.  P.8.,  Lord  ISIansficld  said,  "If,  without  ground,  and  purely  to 
defame,  a  false  character  should  he  given,  it  would  be  a  proper  ground 
for  an  action."  In  the  present  case  all  that  passed  at  the  meeting  of 
the  parlies  maybe  considered  to  have  been  a  privileged  communication; 
but  the  libel  in  question  makes  new  allegations  which  the  defendant  is 
not  able  to  substantiate,  and  which  ho  publishes,  unasked,  three  months 
after  the  enfjuiry  at  the  meeting.  It  was  not  left  to  the  jury  to  say 
generally,  whether  this  publication  was  attended  with  express  malice, 
but,  only,  whether,  supposing  it  t^  be  a  privileged  communication,  it 
was,  nevertheless,  attended  with  malice.  On  that  supposition  the  jury 
negative  the  existence  of  express  malice,  but  by  finding  for  the  plain- 
tiff, notwithstanding,  they  find  that  the  communication  was  not  privi- 
leged ;  and  in  that  rase  malice  in  law  is  implied  from  the  doing  a  hurt- 
ful act  for  which  there  ia  no  excuse.      (After  animadverting  severely  on 


22  Caui'Entkk   v.  Ci{i:sswei,i,.   M.  T.  1827. 

'lie  ilcfoiulaiit's  cotuluct,  the  learned  Judge  proceeded  :)  This  was  a 
toil!  and  unjustiliable  libel  ;  for  even  though  the  defendant's  first  state- 
ment at  the  meeting  should  be  deemed  privileged,  lie  had  no  excuse  for 
going  on  slandering  till  he  had  ell'ected  the  ruin  of  his  nephew.  If  I 
give  a  servant  a  bad  character,  and  the  jury  find  it  a  privileged  commu- 
nication, I  stand  excused  ;  but  if  it  be  proved  tliati  proceed  to  say  I  will 
ruin  him,  and  act  accordingl}',  I  am  justly  liable  for  the  consequences. 
The  only  objection  to  the  present  verdict  is^  that  the  damages  ought  to 
have  been  much  higher. 

BuRRouGH  J.  This  is  not  a  privileged  communication,  but  a  most 
foul  libel,  and  the  verdict  is  right  in  every  thing  but  the  quantum  of  da- 
mages. In  cases  of  giving  character  malice  is  the  gist  of  the  action. 
But  for  defamation  or  libel  which  a  defendant  cannot  justify  by  proving 
its  truth,  he  is  liable  at  all  events,  {a) 

Rule  discharged. 

(a)  Gaselee  J.  was  at  Chambers,  but  expressed  his  concurrence  through  Mr. 
J.  ParL 


CARPENTER,    Assignee  of  Thomas    Cresswell,   a  Bankrupt,   v. 
H.  R.  CRESSWELL.— p.  409. 

T.  C,  in  consideration  of  covenants  by  H.  R.  C,  covenanted  not  to  interfere  in 
a  certain  branch  of  the  Scotch  fish  business,  and  to  assign  to  H.  R.  C.  a  certain 
Scotch  fishery  ;  H.  R.  C.  in  consideration  of  the  assignment,  and  of  T,  C's 
covenant,  covenanted  to  pay  T.  C.  an  annuity:  Held,  that  the  covenant  not 
to  interfere  in  the  business  was  only  a  part  of  the  consideration  for  the  annui- 
ty, and  was,  therefore,  not  a  condition  precedent  or  dependent  covenant. 

Covenant.  Upon  oyer  it  appeared,  that,  by  a  deed  of  28th  Octo- 
ber 1825,  between  Thomas  Cresswell,  fish-factor,  of  the  one  part,  and 
H.  R.  Cresswell,  fishmonger,  of  the  other,  Thomas  Cresswell,  in  con- 
sideration of  the  covenants  in  the  deed  contained,  assigned  to  H.  R. 
Cresswell  all  that  branch  or  portion  of  the  trade  of  him  T.  C.  carried  on 
at  Billingsgate,  consisting  of  purchases  and  assignments  from  Scotland, 
and,  also,  his  interest  in  certain  salmon  fisheries  there,  and  covenanted 
not  to  interfere  or  act  in  the  branch  of  the  business  so  assigned.  H.  R. 
Cresswell,  in  consideration  of  the  assignment  and  covenants  therein- 
before entered  into  by  Thomas  Cresswell,  covenanted  on  his  part  to  pay 
Thomas  Cresswell  an  annuity  of  £250,  by  quarterly  payments  every 
year  ;  to  abstain  from  interfering  in  the  branch  of  trade  still  carried  on 
by  Thomas  Cresswell,  and  to  refer  differences  to  arbitration. 

Breach,  non-payment  of  £62.  10*.  for  the  quarter  ending  May  1, 
1827. 

Plea,  that  before  the  £62.  lOs.  became  due,  Thomas  Cresswell  in- 
terfered, acted  in,  and  intermeddled  with  the  branch  of  trade  assigned 
by  him  to  the  defendant. 

Demurrer  and  joinder.  * 

Taddy  Serjt.  in  support  of  the  demurrer,  was  stopped  by  the  Court. 

Wilde  Serjt.  contrq.  The  covenant  by  Thomas  Cresswell  not  to  in- 
terfere with  the  branch  of  the  business  he  had  assigned  was  a  condition 
precedent  to  the  payment  of  the  annuity  by  the  defendant,  and  the  con- 


4  Bingham, 409.  23 

dilion  not  having  been  observed,  the  plaintiff  has  no  right  of  action.  He 
cited  Duke  of  St.  ^^Ibans  v.  Shore,  1  H.  Bl.  270;  Campbell  y.  Jones, 
6  T.  R.  570;  Glazebrook  v.  JVoodrow,  8  T.  R.  375;  Boone  v.  Eyre,  1 
H.  Bl.  273;  FothergillY.  IVallon,  2B.  Moore,  630. 

Park  J.  In  this  case  our  judgment  must  be  for  the  plaintiff.  What- 
ever confusion  may  prevail  among  the  earlier  cases  on  the  subject  of 
dependent  or  independent  covenants,  the  rule  seems  now  to  be  well  un- 
derstood, as  ably  and  clearly  laid  down  by  Mr.  Serjt.  Williams  in  his 
note  to  Pordage  v.  Cole,  1  Wnis.  Saund.  320  b,  ;  namely,  "  That 
where  a  covenant  goes  only  to  part  of  the  consideration  on  both  sides, 
and  a  breach  of  such  covenant  maybe  paid  for  in  damages,  it  is  an  inde- 
pendent covenant,  and  an  action  may  be  maintained  for  a  breach  of  the 
covenant,  without  averring  performance  in  the  declaration."  In  the 
present  case,  the  engagement  not  to  interfere  in  the  Scotch  fish  busi- 
ness formed  only  a  part  of  the  consideration  for  the  defendant's  cove- 
nant. Another  and  most  material  part  was  the  assignment  of  the 
Scotch  fishery,  and  the  case  falls  directly  within  the  principle  estab- 
lished by  Boone  v.  Eyre.  There,  the  plaintiff  having  conveyed  to  the 
defendant  the  equity  of  redemption  of  a  plantation  in  the  West  In- 
dies, together  with  the  stock  of  negroes  thereon,  and  having  covenanted 
that  he  had  a  good  title  to  the  whole,  and  that  the  defendant  should 
quietly  enjoy,  the  defendant  C9venanted  to  pay  an  annuity  to  the  plain- 
tiff on  his  performing  every  thing  on  his  part  to  be  performed.  In  an 
action  for  non-payment  of  the  annuity,  the  defendant  pleaded  that  the 
plaintiff  was  not,  at  the  time  of  the  conveyance,  legally  possessed  of  the 
negroes,  and  so  had  not  a  good  title  to  convey  :  but  the  plea  was  held 
ill  on  demurrer  ;  the  Court  of  King's  Bench  observing,  that  if  such  a 
plea  were  allowed,  want  of  title  to  any  one  negro  would  bar  the  action. 
So  here,  if  T.  Cresswell  had  sold  only  one  barrel  offish,  it  might  with 
equal  propriety  be  urged  as  a  bar  to  the  present  action.  In  Campbell 
v.  Jones,  the  plaintiff,  in  consideration  of  £250  paid,  and  £250  to  be 
paid  by  the  defendant  to  him,  covenanted  to  teach  the  defendant  to 
bleach  certain  materials,  and  to  permit  him  to  bleach  them  during  the 
continuance  of  a  patent  belonging  to  the  plaintiff.  Upon  an  action  for 
non-payment  of  the  X'250  there  was  a  special  demurrer,  assigning  for 
cause  that  it  was  not  averred  in  the  declaration  that  the  plaintiff  had 
taught  the  defendant  how  to  bleach.  That  the  Court  held,  that  the  co- 
venants were  independent;  the  covenant  to  teach  forming  but  one  part 
of  the  consideration  for  the  defendant's  covenant  to  pay;  the  other  part 
of  the  consideration  being  the  covenant  to  permit  him  to  bleach.  In 
Fothergill  v.  Jfiillon,  the  owner  of  a  ship  covenanted  with  the  freigh- 
ters to  take  brandy  on  board  at  Havre,  and  proceed  lliorewith  (o  Tci'- 
ceira,  where  he  was  to  take  on  board  a  fruit  or  other  cargo,  as  the 
freiglilcrs  should  load,  anrl  return  therewith  to  London,  the  freighters 
covenanting  to  pay  freight  for  the  fruit  and  the  brand}',  and  to  insure  a 
full  cargo  of  fruit.  In  an  action  of  covenant  for  not  putting  on  board  a 
full  cargo  of  fruit,  it  was  holden  that  the  covenant  to  take  brandy  from 
Havre  was  distinct  and  independent;  and  that  it  was  not  necessary  to 
aver  performance  specifically  as  of  a  condition  precedent.  Dallas  C  .1., 
in  an  elnborale  juflgment,  rrlicd  «)n  Boone  v.  Kyrc,  as  recognised  l)\ 
Lord  Kenyan,  in  Cavijihrll  x.  Janes,  ^\'\i\  hv  Lord  Ellrnhcn'ough  in 
ll'iVi-lork-  y.   (lc<lilcs.    10    lOnst,    5(11.;  and  I  quoted  what    foil    from  Li: 


24  lii.MN  V.  Dhummond.  M.  'W  1827. 

Blanc  J.  in  Glazebrook  v.  Woodroiv,  *' the  aubstantial  part  of  tho 
agreement  being  the  conveyance  of  the  property  in  respect  of  which 
the  annuity  was  to  be  i)aid;  the  Court  held  it  to  be  no  answer  to  an 
action  for  the  annuity,  to  say  that  the  plaintifl'  had  not  a  good  title  in 
some  of  the  negroes  which  were  upon  the  plantation,  because  all  the 
material  part  of  the  covenant  had  been  performed  ;  and  the  plaintiff  had 
a  remedy  upon  the  covenant  for  any  special  damage  sustained  for  the 
non-performance  of  the  rest." 

The  substantial  part  of  the  agreement,  in  the  present  instance,  is  the 
assignment  of  the  fishery  in  Scotland;  I  am,  therefore,  of  opinion,  that^ 
according  to  all  the  cases,  our  judgment  must  be  for  the  plaintiff. 

BuRROUGii  J.  Upon  examining  the  deed  set  out  on  oyer,  I  think  it 
evident  that  the  parties  intended  the  covenant  for  payment  of  the  annui- 
ty to  be  an  independent  covenant.  The  case  of  Campbell  v.  Jones  ii* 
a  most  important  authority,  and  expressly  in  point  ;  for  there  the  plain- 
tiff having  covenanted  to  teach  the  defendant  to  bleach,  and  to  permit 
him  to  bleach  during  a  certain  time,  in  consideration  of  a  certain  sum,  it 
was  holden,  that  as  the  defendant,  at  all  events,  enjoyed  the  permission 
to  bleach,  the  teaching  to  bleach  was  not  a  condition  precedent  to  the 
payment  of  the  money.  In  that  case  all  the  previous  authorities  were 
referred  to,  and  among  them  Kingston  v.  Preston,  Doug.  690.,  where 
the  distinction  between  dependent  and  independent  covenants  was  so 
satisfactorily  laid  down  by  Lord  Mansfield.  I  am,  therefore,  clearly 
of  opinion,  that  T.  Cresswell's  covenant  not  to  interfere  in  the  business 
is  an  independent  covenant. 

Gaselee  J.  I  am  of  the  same  opinion  :  the  annuity  to  be  paid  by 
the  defendant  was  in  consideration  of  two  things  ;  one,  the  assignment 
of  the  fishery  in  Scotland;  the  other,  Thomas  Cresswell's  giving  up  that 
branch  of  the  business.  Upon  the  authority  of  all  the  cases,  therefore, 
the  relinquishment  of  the  business  not  forming  the  whole  of  the  consider- 
ation for  the  payment  of  the  annuity,  the  covenant  not  to  interfere  must 
be  esteemed  an  independent  covenant.  The  Duke  of  St.  Albans  v. 
Shore  is  distinguishable  from  the  present  case,  and  from  the  others 
which  have  been  cited;  because  the  vendor  of  an  estate  having  cut  down 
the  limber  after  he  had  agreed  to  sell  it  with  the  timber  standing,  the 
state  of  the  premises  was  so  entirely  changed,  that  the  vendee  could 
never  have  that  which  he  had  contracted  to  buy. 

Judgment  for  the  plaintiff. 


GAINS  v.   BILSON.— p.  114. 

^Vl,c^c  a  cause  is.  mndo  a  remayict  at  the  assi/cs,  a  new  notice  of  tri:il  is  nccessan,'. 

ELVIX  V.  DRUMMOND.— p.  41.^. 

Phiintiff  having  succeeded  in  setting  aside  a  nonsuit,  defendant  gave  a  cognovit 
for  Is.  damages,  and  such  costs  as  the  prothonotary  sliould  think  fit.  Protho- 
notary  having  refused  to  allow  plaintifT  the  costs  of  the  trial,  the  Court  de- 
clined intcifering. 


4  BiNGiiAM,  415.  25 

The  plaintiff  in  this  case  had  been  nonsuited  (see  4  Bingham,  p. 
278.),  and  on  a  rule  for  setting  aside  the  nonsuit,  the  defendant  gave  a 
cognovit  for  1*.  damages,  and  such  costs  as  the  prothonotary  should 
think  fit.  The  prothonotary  having  disallowed  the  plaintiff  the  costs 
of  the  trial, 

Cross  Serjt.  moved  for  a  rule  nisi  to  review  the  taxation,  and  cited 
Booth  V.  Jitherton,  6  T.  R.  144,  and  Jackson  v.  Halhtm,  2  B.  &  A. 
.S17,  to  show  that  the  plaintiff  was  entitled  to  the  costs  of  the  trial,  con- 
tending that  *<such  costs  as  the  prothonotary  should  think  fit"  meant 
such  costs  as  the  rules  of  law  allowed  on  taxation.     But 

The  Court  thought  that  the  parties  had  made  the  prothonotary  an 
arbitrator,  and  refused  to  interfere. 

Rule  refused. 


FREEMAN  v.  BURGESS.— p.  416. 

The  Court  refused  to  liberate,  on  motion,  a  discharged  insolvent,  who  had  been 
arrested  by  his  surety  for  the  arrears  of  an  annuity  accruing  subsequently  to 
the  insolvent's  discharge,  and  paid  by  the  surety. 

In  March  1S25,  plaintiff  became  surety  for  defendant  in  an  annuity 
bond  for  the  payment  to  Robert  Stewart  of  an  annuity  of  65/.  a  year 
for  the  life  of  defendant,  secured  by  the  covenants  of  plaintiff  and  defen- 
dant, and  by  a  judgment  entered  up  against  them. 

On  the  4th  May  1S2G,  the  defendant  was  discharged  from  prison  un- 
der the  insolvent  debtor's  act  1  G.  4.  c.  119,  and  inserted  in  his  schedule 
the  consideration  for  the  annuity,  500/.,  as  a  debt  due  from  him  to 
Stewart,  and  also  to  the  plaintiff.  lie  likewise  specified  a  debt  of  22/. 
as  due  from  him  to  plaintiff. 

Stewart,  upon  application  to  the  commissioners,  was  allowed  to  prove 
for  497/.  The  plaintiff  claimed  a  dividend  from  the  defendant's  assig- 
nee, as  well  upon  the  500/.  as  the  22/.,  but  received  a  dividend  only  on 
the  22/. 

In  this  term  the  plaintiff  arrested  the  defendant  for  SO/,  in  respect  of 
payments  of  the  annuity  made  subsequently  to  the  defendant's  discharge 
under  the  insolvent  debtor's  act.     Whereupon 

Cross  Serjt.  obtiiincd  a  rule  nisi  to  discharge  the  defendant  out  of 
the  custody  of  the  .sheriff  upon  entering  a  common  appearance. 

Wilde  Serjt.,  who  showed  cause,  cited  Pa^e  v.  Jhisscll,  2  M.  & 
S.  551,  JVelshv.  IVelsli,  4  M.  &  S.  333.,  and  F/attagan  v.  Jra/kins, 
3  B.  &  A.  186.  1  Bing.  413.,  to  show  that  the  surety  was  lial)le  for  ar- 
rears accruing  after  the  insolvent's  dischaige  ;  and  if  so,  urged  that  the 
Court  would  not  interfere  on  motion  in  favour  of  the  insolvent.  If  his 
discharge  could  avail  him  against  the  surety  it  might  be  pleaded. 

Cross  contra. 

Park  .1.  It  has  been  admitted  on  the  part  of  the  defendant  (hat  he 
is  liable  to  be  sued  in  respect  of  the  payments  made  by  his  surety  since 
his  discharge,  but  ii  is  conteiuled  that  tliere  is  a  bardsliij)  in  keeping 
him  in  custody,  and  the  Court  is  asked  to  do  lliat  oii  motion  which,  if 
it  be  right,  tlie  defendant  might  obtain  by  pleading.  But  the  Couit 
thinks  the  defendant  is  not  entitled  to  his  dis'-barge  ;  at    all  events,  not 

vol..   XV.  4 


2G  Fkkeman  /'.  BuKtiESs.  M.  T.  1827. 

upon  motion  ;  and  there  is  no  greater  hardship  in  putting  him  to  plead 
the  proceedings  under  lus  insolvency  than  in  requiring  from  a  feme  co- 
vert a  plea  of  coverture.  In  all  the  cases  from  Page  v.  Bussell  down- 
wards, it  has  heen  holden  that  a  person  discharged  under  an  insolvent 
act,  or  a  bankrupt  who  has  obtained  his  certificate,  is  liable  to  his  surety 
for  arrears  paid  subsequently  to  the  discharge  or  certificate.  In  Flana- 
gan V.  IValkins,  where  the  Judges  were  unanimous,  it  was  holden 
that  the  surety  under  an  annuity  deed,  who  had  redeemed  the  annuity 
subsequently  to  the  bankruptcy,  might  sue  the  bankrupt  for  the  amount, 
although  he  had  obtained  his  certificate,  and  although  the  grantee  had 
])rovcd  under  tiie  commission  ;  and  that  decision  was  afterwards  affirm- 
ed upon  argument  in  the  Court  of  Exchequer  Chamber.  It  is  true 
that  these  were  not  cases  of  arrest;  but  in  JVelsh  v.  fVelsh,  where  the 
surety  under  an  annuity-deed  was  compelled  to  pay  the  grantee  arrears 
accruing  alter  the  bankruptcy  of  the  grantor,  it  was  holden  that  he 
inight  sue  the  grantor  for  the  sums  so  paid,  and  hold  him  to  bail;  and 
Lord  Ellenborough  said,  *'If  the  legislature  intended  such  a  case  as 
this  they  have  not  so  said,  nor  have  they  used  language  sufficiently  clear 
to  enable  us  so  to  say."  Indeed  it  seems  clear  that  the  49  G.  3.  c.  121. 
had  made  no  provision  on  the  subject,  from  the  circumstance  that  the 
recent  bankrupt  act  6  G.  4.  c.  IG.  contains  an  entirely  new  clause,  by 
which  it  is  provided,  (s.  55,)  that  no  person  entitled  to  an  annuity  gran- 
ted by  a  bankrupt  shall  sue  any  collateral  surety  for  payment  of  the  an- 
nuity until  such  annuitant  shall  have  proved  under  the  commission  for 
the  value  of  such  annuity;  and  if  the  surety  after  such  proof  pay  the 
amount,  he  shall  be  discharged  from  all  claims  in  respect  of  the  annuity; 
if  he  do  not  pay,  he  may  be  sued  for  the  accruing  payment  of  the  an- 
nuity, and  after  payment  may  stand  in  the  place  of  the  annuitant  in  re- 
spect of  such  proof  as  aforesaid. 

I  am,  therefore,  of  opinion  that  there  is  no  ground  for  this  applica- 
tion, and  that  the  rule  must  be  discharged. 

BuRROUGH,  J.  If  tliere  be  any  doubt  on  the  point,  it  is  sufficient  to 
justify  us  in  not  acceding  to  the  present  application,  for  the  defendant  has 
his  remedy  by  pleading  to  the  action. 

Gaselee,  J.  It  has  been  taken  for  granted,  on  the  part  of  the  de- 
fendant, that  if  the  surety  were  to  stand  in  the  place  of  the  grantee  he 
would  be  reimbursed;  but  if  the  surety,  after  redeeming  the  annuity, 
should  cause  execution  against  newly  acquired  effiicts  to  be  issued  on  the 
judgment  confessed  by  ihe  insolvent,  the  sum  raised  by  such  execution 
must  be  distributed  rateably  among  all  the  creditors.  There  is  no  ground, 
therefore,  for  relieving  the  defendant  on  motion,  and  the  rule  must  be 

Discharged. 


LOUKES  V.  HOLBEACH.— p.  419. 

A  jjurty  outlawed  in  K.  B.  in  an  action  to  recover  the  arrears  of  an  arinuity  can- 
not be  lieard  in  C.  P,  on  a  motion  to  set  aside  the  annuity, 


4  Bingham,  423.  27 

BOURNE  V.  BENETT  and  Others.— p.  423. 

A  judgment  debt  due  from  B.  and  others,  in  action  of  trespass,  in  which  B.  was 
chiefly  concerned,  and  bound  to  indemnify  his  co-defendants,  was  set  off  against 
a  judgment  debt  due  to  B.  from  plaintiff. 

The  plaintiff,  who  owed  the  defendant  Benctt  £700  upon  a  cognovit, 
obtained  a  judgment  against  him  and  others,  with  £300  damages,  in  an 
action  of  trespass  in  wiiich  Benett  was  the  substantial  defendant,  and 
bound  to  indemnify  the  others  to  the  extent  of  £500.      Whereupon, 

Bosunquet  Serjt.  obtained  a  rule  nisi  on  the  part  of  Benett,  to  set  off 
the  700/.  and  costs  due  on  the  judgment  confessed  by  the  plaintiff  against 
the  300/.  and  costs  recovered  by  him  in  the  action  of  trespass,  which,  as 
he  urged,  each  of  the  defendants  was  liable  to  pay  separately. 

Wilde  Serjt.,  who  shewed  cause,  objected  to  the  want  of  reciprocality 
in  the  opposite  claims,  and  contended  that  the  Court  would  not  allow 
one  of  many  defendants  to  set  ofl' a  judgment  debt  due  to  one  of  them, 
against  a  judgment  debt  which  was  due  from  all  of  them;  at  all  events, 
not  without  securing  the  payment  of  the  attorney,  as  was  the  practice  in 
the  Court  of  King's  Bench,  while  the  contrary  practice  of  this  Court 
had  long  ago  been  denounced  by  Lord  Eldon,  as  standing  in  direct  con- 
tradiction to  the  practice  of  every  other  court,  as  well  as  to  the  princi- • 
pies  of  justice.      Hall  v.  Ody,  2  B.  &  P.  2S. 

Sed  per  Curiatn.  The  rule  must  be  made  absolute.  It  is  to  be 
wished  that  some  regulation  existed  for  the  indemnity  of  the  attorney; 
but  that  is  not  the  case  at  present,  and  the  Court  must  abide  by  its  own 
established  practice.  As  to  the  alleged  absence  of  reciprocality  between 
the  two  claims,  the  practice  as  between  A.  and  B.  applies  equally  as 
between  A.  and  B.  and  C;  and  it  appears  by  the  affidavits  that  Benett 
was  the  person  substantially  responsible  in  the  action  of  trespass. 

Rule  absolute. 


STILL,  Demandant;  RAYMOND,  Tenant; 
V.  LAW,  fust  Vouchee;  J.  LAW,  second.— p.  125. 

Recovery  amended  by  abridging  ihc  returns. 


DAWLLNG,  Demandant;  SELBV,  Vouchee.— p.  426. 
The  Court  refused  to  amend  a  i  ccovery  by  altering  Berks  into  Bucks. 


The  KLNG  v.  Sheriff  of  LONDON,  in  WILSON  v.  GOLDSTELN 

and  Another. — p.  -127. 

An  applicalif)!!  to  *ct  ;isi«lc  an  attachment  for  not  bringing  in  llie  Ijody,  sliould  bf 
grr-uiKUd  on  an  aflidavil  that  it  \\  made  al  tlic  expense  of  Hic  bail. 


28  K.)\\i.i:s   i\  I.i'sTY.   M.  T.  1827. 


1U)\VLES  V.  LUSTY.— p.  428. 

Writ  of  i-ntrv  siir  ahtUcim-nt  of  six  messuages,  six  mills,  8cc. 

Plea,  that  K.  S.  devised  the  s^iid  messuages,  mills,  Ixc.  and  parcel  of  the  land,  to 
T.,  \vho  devised  tliem  to  S.,  wife  of  R.  D.  C,  who  levied  a  fine  to  the  tenant. 

The  plea  concluded  with  a  verification,  and  a  prayer  of  the  messuages,  &c.,  and 
land,  in  the  count. 

The  fine  set  out  in  the  pica  described  the  premises  as  four  messuages,  o?ie  cloth 
mill,  &:c.,  and  the  statement  of  the  fine  ended  with  a  Jiruiit  fiatet  Jier  recordum. 

Held,  that  the  plea  was  not  double  : 

That  the  prayer  for  judgment  of  the  messuages  and  land  in  the  count  did  not  vi- 
tiate the  pica,  notwithstanding  the  commencement  of  the  plea  applied  only  to 
the  messuages  and  parcel  of  the  land  : 

That  it  was  not  necessary  for  the  pica  to  conclude  with  a  prout  patct,  that  alle- 
gation being  introduced  before  the  conclusion :  and 

That  the  premises  in  the  fine  were  sufficiently  identified  with  those  in  the  intro- 
ductory part  of  the  plea. 

Wkit  of  entry  sur  abatement  in  the  cui  and  per  of  six  messuages,  six 
mills,  six  outhouses,  six  yards,  two  barns,  two  stables,  two  gardens,  two 
orchards,  one  hundred  acres  of  arable  land,  one  hundred  of  pasture,  one 
hundred  of  meadow,  one  hundred  of  wood,  one  hundred  of  underwood, 
one  hundred  covered  with  water,  and  one  hundred  other  acres  in  the 
parish  of  Stonehouse  in  Gloucestershire. 

Demandant  staled   his  title  as  cousin  and  heir  to  Robert  Sandford, 
upon  whose  death   Robert  Timbrell  had  demised  to  Richard  Denison 
Cumberland  and  Susannah  his  wife,  by  whom  the  tenant  had  entry. 
,  Pleas  :  First,  that  demandant  was  not  heir  to  R.  Sandford;  and  issue 
thereon. 

Secondly,  that  Timbrell  did  not  abate;  and  issue  thereon. 

Thirdly,  as  to  the  said  messuages,  mills,  barns,  stables,  outhouses, 
gardens,  orchards,  and  thirty  acres,  parcel  of  the  said  land,  that  demand- 
ant ought  not  to  have  seisin  of  the  messuages  or  tenements  with  the  land 
and  appurtenances  in  the  count  mentioned,  or  any  part  thereof,  because 
Robert  Sandford  devised  the  eplale  to  Timbrell,  who  devised  it  to  Su- 
sannah, wife  of  R.  D.  Cumberland;  and  that  they,  in  right  of  the  said 
Susannah,  became  thereby  seised  in  fee,  and  afterwards  levied  a  fine  with 
proclamations  to  the  tenant  Samuel  Lusty.  The  plea  concluded  with  a 
common  verification  and  a  prayer  of  judgment,  if  the  demandant  ought 
to  have  his  seisin  of  the  messuages  or  tenements,  with  the  land  and  ap- 
purtenances in  tl.e  count  mentioned.  The  premises  described  in  the 
fine  set  out,  were,  four  messuages, /bt/r  barns,  four  stables,  four  curti- 
lages, four  gardens,  four  orchards,  one  cloth  mill,  thirty  acres  of  land, 
thirty  of  meadow,  thirty  of  pasture,  with  the  appurtenances,  in  the  pa- 
rish of  Stonehouse  in  Gloucestershire. 

Demurrer  and  joinder. 

Russell  Serjt.  in  support  of  the  demurrer,  cited  Vin.  Abr.  Double 
Plea,  A.  23,  21.  26  ;  Stephen,  271;  Rastal,  277;  Vin.  Abr.  Double 
Pleas,  A.  07;  Com.  Dig.  Pleader,  E.  2;  Thomas  \.  Healhorn,  2  B.  & 
C.  477;  Com.  Dig.  Pleader,  E.  29. 

Peake  Serjt.,  contra,  referred  to  Com.  Dig.,  Pleader,  E,  2;  Plowd. 
140;  Calfe  y.  Nevil,  Poph.  1S.5;  Plowd.  66;  Brett  v.  Papillon^  4 
East,  .502;  Rcx  v.  Shaksjiearj  10  East,  83;  Atwood  v.  Davis,  1  13.  & 

Cur.  adv.  vulL 


4  Bingham,  428.  29 

Park  J.  This  case  comes  before  the  Court  upon  a  demurrer  to  a  plea 
to  a  writ  of  entry. 

The  plea  on  which  this  question  arises  is  this:  (here  the  learned  Judge 
read  the  3d  plea  as  above.) 

This,  it  is  said,  is  duplicity  in  pleading,  for  that  either  of  the  matters 
mentioned,  viz.  the  devise  by  Timbrell,  or  the  fine  levied,  furnishes  a 
complete  defence,  and  ought  not  to  have  been  included  in  the  same  plea. 

But  we  are  of  opinion  that  there  is  no  ground  for  this  objection. 

First  of  all,  no  matter  will  operate  to  make  a  pleading  double,  that  is 
only  pleaded  as  a  necessary  inducement  to  another  allegation.  I  admit 
the  rule  laid  down  by  Lord  C.  B.  Cumyi^s,  that  if  a  plea  contains  du- 
plicity, and  alleges  several  distinct  matters  (which  require  several  and 
distinct  answers)  to  the  same  thing,  that  would  be  bad.  Com.  tit. 
Pleader,  E.  2. 

But  no  matters,  however  multifarious,  will  operate  to  make  a  plead- 
ing double,  provided  that  all  taken  together  constitute  but  one  connect- 
ed proposition  or  entire  point. 

Try  the  present  case  by  this  rule,  and  it  will  be  found  that  though 
there  be  a  devise  stated  by  Timbrell  to  Cumberland,  and  a  fine  levied 
by  him  and  his  wife,  they  constitute  but  one  entire  proposition  j  one  en- 
tire point  of  defence. 

Thus  (Vin.  Abr.,  Double  Pleading,  pi.  7.)  to  an  action  of  assault  and 
false  imprisonment,  defendant  pleaded  that  he  arrested  the  plaintifi'on  a 
suspicion  of  felony.  He  may  set  forth  any  circumstances  of  suspicion, 
f  hough  each  circumstance  may  be  alone  sufficient  to  justify  the  arrest, 
for  all  of  them  taken  together  do  but  amount  to  one  connected  cause  of 
suspicion. 

The  true  rule  in  pleading,  I  take  to  be  this,  that  duplicity  is,  where 
two  distinct  matters,  not  being  part  of  one  entire  defence,  are  attempted 
to  be  put  in  issue.  But  this  can  never  apply  to,  nor  does  it  ever  pre- 
clude a  party  from  introducing  several  matters  into  a  plea,  if  they  are 
constituent  parts  of  the  same  defence. 

For  though  it  be  true  that  issue  must  be  taken  on  a  single  point,  yet 
it  is  not  necessary,  nor  ever  can  be,  that  such  single  point  must  consist 
only  of  one  single  fact.  This  is  well  illustrated  by  the  case  of  Robin- 
son v.  lialcy,  1  liurr.  316. 

To  an  action  of  trespass  defendant  had  pleaded  amongst  other  things 
a  right  of  common.  Plaintiff  in  his  replication  traversed,  that  the  cat- 
tle were  the  defendant's  own  cattle,  that  they  were  levant  and  couchant, 
and  that  they  were  commonable  cattle.  To  this  there  was  a  special  de- 
murrer, "that  the  replication  is  multifarious,  and  that  several  matters 
(specifying  thcmj  are  put  in  issue,  whereas  only  one  single  matter  ought 
to  be  so." 

J^ord  7l/«7i,v//i'.'/(/',9  judgment  upon  this  point  is  : — 

"  The  substantial  rules  of  pleading  arc  founded  in  strong  sense,  and 
in  the  soundest  and  closest  logic  ;  and  so  appear  when  well  understood 
;ind  explained  ;  though  by  being  misunderstood  and  misapplied  they  arc 
so  often  made  use  of  as  instruments  of  chicane. 

"  As  to  tlio  present  case,  it  is  true  you  must  lake  issue  upon  a  single 

point,  but  it  is  not  necessary  that  this  single  point   should   consist  only 

*of  a  single  l^act.      Here  the  point  is  the  cattle  being  entitled  to  common; 

this  is  the  single  point  of  the  defence.      Hut  in  fact,  they  must  be  both 


30  HowLES  V.  Lusi V.  M.  T.  1827. 

liis  own  rulllc,  ;uul  also  levant  anil  couchant,  wliicli  arc  two  dillercnt 
essential  circumstances  of  their  being  entitled  to  conunon,  and  l)oth  oi" 
them  absolutely  reijuisitc." 

We  are,  therefore,  of  opinion,  that  there  is  no  duplicity  in  this  case; 
the  defendant  has  chosen  to  set  out  his  whole  title,  which,  though  it 
may  consist  of  several  matters,  conduces  to  one  common  end,  viz.  a 
complete  bar,  if  true,  to  the  claim  of  the  plaintifl'. 

The  second  objection  in  this  case  is,  that  the  introduction  to  the  plea 
selects  a  part,  and  yet  concUides  as  to  the  whole.  To  which  the  Court 
answers  that  tliis  prayer  to  a  plea  in  bar  may  be  set  right.  In  Brett  v. 
FapiUon,  1  East,  509,  Lord  EUenborough  said,  "In  many  cases  judg- 
ment has  been  entered  up  according  to  the  right  appearing  in  favour  of 
the  plaintifl'on  the  whole  record,  notwithstanding  an  issue  on  a  bad  plea 
in  bar  found  against  him.  The  Court  in  2  Stra.  1055,  and  Rep.  temp. 
Hardvv.  345,  held  expressly  that  they  were  not  bound  by  the  prayer  of 
an  improper  judgment,  and,  therefore,  pronounced  the  rule,  that  the 
plaintiff  in  error  should  be  barred,  contrary  to  the  terms  of  defendant's 
prayer,  that  the  judgment  might  be  affirmed." 

The  same  doctrine  was  established  in  the  King  v.  Shakspeare,  10 
East,  83.  In  Attivood  v.  Davis,  1  B.  &  A.  172,  Bailey  J.  said, 
*'  there  is  a  distinction  between  a  plea  in  bar  and  a  plea  in  abatement; 
in  the  former  the  party  may  have  a  right  judgment  on  a  wrong  prayer, 
but  not  in  the  latter." 

Another  objection  is,  that  the  fine  as  pleaded  does  not  cover  all  the 
premises  alluded  to  in  the  declaration  or  plea  mentioned,  for  that  the 
plea  in  its  introductory  part  speaks  of  six  messuages,  whereas  the  fine 
speaks  only  of  four. 

But  the  plea  states  that  the  fine  was  levied  of  all  the  messuages  in 
the  introductory  part  of  the  said  plea  mentioned  and  the  land  whereon 
the  said  buildings  now  stand,  by  the  description  of  four  messuages,  &c. 
Therefore  we  say  that  will  be  a  matter  of  fact  to  be  proved  by  the  evi- 
dence, w-hcther  this  allegation  be  true.  f 

The  fourth  objection  is,  that  this  fine  is  not  verified  by  the  record. 
This  argument  is  not  true  in  fact,  for  after  setting  out  the  fine  the  plea 
says,  "as  by  the  said  fine  and  proclamations  made  thereon  now  remairi- 
ing  in  the  said  Court  of  the  Bench  more  fully  appears." 

JBut  it  is  said  this  averment  ought  to  have  formed  the  conclusion  of 
the  whole  plea. 

It  seems  to  me,  however,  this  would  have  been  absurd,  for  the  fine 
does  not  constitute  the  whole  of  the  defendant's  title.  It  is  made  up  of 
several  distinct  matters,  though  conducing  to  one  point,  viz.  the  defen- 
dant's title. 

Therefore  the  conclusion  to  the  Court  must  be  on  the  whole  matter; 
and  though  one  of  the  matters  be  upon  the  fine,  which  is  verified  by  the 
record  i'n  its  proper  place,  yet  it  would  not  have  been  true  that  the 
whole  matter  of  the  plea  was  verified  by  the  record,  when  a  part  of 
that  plea  was  the  devise  to  Mrs.  Cumberland,  which  does  not  appear  by 
any  matter  of  record. 

For  these  reasons  we  arc  all  of  opinion  that  judgment  must  be  for  the 

Defendant. 


4  Bingham,  435.  31 


(IN  THE  EXCHEQUER  CHAMBER.) 

M'DOUGAL  V.  ROBERTSON  and  Another.— p.  435. 
.  (In  Error.) 

A  submission  to  arbitration  contained  a  stipulation  that  it  should  not  be  vacated 
by  the  death  of  either  of  the  parties,  but  that,  notwithstanding  such  an  event, 
matters  should  be  proceeded  in. 

The  final  award  having  been  made  after  the  death  of  one  of  the  parties:  Held, 
that  a  surety  for  the  fulfilment  of  it  was  liable. 

This  was  an  action  brought  by  the  defendants  in  error,  against 
M'Dougal,  the  plaintiflf  in  error,  on  a  bond. 

The  declaration  stated  the  single  bond. 

By  the  condition  which  was  afterwards  set  out  on  oyer,  it  appeared 
that  a  deed  of  submission  or  reference  in  the  Scotch  form  had  beeii 
made  at  Glasgow,  between  one  iEneas  Morrison  and  the  defendants  in 
error,  the  plaintiffs  in  the  action,  referring  all  matters  in  difference  be- 
tween them  to  the  award  of  two  persons  named,  and  in  case  they  differ- 
ed, to  an  umpire;  and  as  the  condition  stated,  they  bound  themselves, 
their  heirs,  executors,  and  administrators,  to  fulfil  the  award  under  a 
penalty  of  500/. 

The  condition  of  the  bond  did  not  recite  all  the  provisions  containecJ 
in  the  submission,  but  referred  to  other  provisions,  declarations,  and 
agreements  therein  particularly  specified  and  set  forth. 

Then  it  went  on  to  provide  that  if  Morrison,  his  heirs,  executors, 
administrators,  and  successors,  should  truly  fulfil  all  Morrison's  cove- 
nants and  agreements  in  the  submission  in  part  recited,  particularly  if 
he  or  they  should  pay  all  sums  directed  to  be  paid  either  by  any  interim 
decree,  or  by  any  final  decree,  then  it  was  to  be  void,  otherwise  to  re- 
main in  force. 

M'Dougal  pleaded  first,  non  est  factum. 

'I'hc  second  pica  stated  the  deed  of  submission  at  large,  and  particu- 
larly a  clause  which  raised  the  argument.  "Declaring  always,  as  it 
was  thereby  expressly  provided  and  declared,  that  the  said  submission 
should  not  vacate  or  expire  through  the  decease  or  insolvency  of  either 
of  the  parties,  but  sliould  notwithstanding  such  an  event  be  proceeded 
in,  and  the  matters  at  issue  determined  in  the  same  manner  as  if  sucli 
an  event  had  not  occurred."  It  then  proceeded  to  state  as  to  all  excepi 
tiic  final  award,  that  Morrison,  his  heirs,  cxeculors,  administratois,  and 
successors,  did  every  thing  which  by  the  said  deed  of  submission  they 
were  bound  to  do,  and  as  to  the  residue  not  excepted,  that  no  final  de- 
cree was  made. 

The  third  plea,  as  to  all  except  what  regarded  the  money  directed  lo 
be  paid,  or  penally  directed  to  be  paid,  alleged  performance  by  Morri- 
son in  his  lifetime,  and  his  heirs,  executors,  and  successors,  after  his 
death,  and  as  to  the  part  cxrojjteil,  that  no  sum  anil  no  penalty  was  di- 
rected to  be  p.iid. 

The  fourth  |ilea  began  by  excepting  what  was  excepted  in  the  iiilro- 
♦luction  to  tlic  second  plea,  which  related  to  a  linal  award,  and  then 
pleaded  that  Morrison,  his  heirs,  &c.  did  perform  every  covenant  in  IUt; 


32  M*Dou(;ai.  v.  Robkutson.  M.  T.  1827. 

saiil  deed  or  instrument  of  submission  as  to  ;»11  interim  orders  ;  and 
then  as  to  wliat  was  excepted,  namely,  as  to  a  final  decree  ;  that  after 
the  making  the  said  deed,  or  instrument  of  submission,  and  before  the 
arbitrators  gave  forth,  pronounced,  or  made  any  final  award,  order,  ar- 
bitrament, sentence,  decree  arbitral,  final  end  and  determination,  and 
before  tlie  umpire  or  oversman  gave  forth,  pronounced,  or  made  any 
umpirage  under  or  by  virtue  of  the  said  deed  or  instrument  of  submis- 
sion, to  wil^  on  the  7th  October,  in  the  year  1823,  the  said  iEneas  Mor- 
rison died. 

The  fifth  plea  alleged  that  iEneas  Morrison  died  before  any  decree 
arbitral  either  interim  or  final. 

The  course  which  the  argument  took  makes  it  immaterial  to  pursue 
the  other  pleas. 

To  the  second  and  third  pleas,  the  plaintiffs  below  in  their  replication 
stated  all  the  proceedings  under  the  submission  down  to  a  final  award, 
by  which  Morrison's  executors  were  directed  to  pay  a  sum  of  1500/,, 
and  to  deliver  up  a  certain  letter  of  credit,  or  pay  500/.,  averring  that 
all  these  proceedings  were  valid  according  to  the  law  of  Scotland.  And 
then  alleged  the  breaches  in  not  paying  the  1500/.,  and  in  neither  de- 
livering up  the  letter  of  credit,  nor  paying  the  500/.,  which  was  the  al- 
ternative. 

The  defendant  rejoined,  protesting  that  the  submission  was  revoked 
by  the  death  of  Morrison;  and  averred  as  to  the  non -performance  of  the 
final  award,  that  INIorrison  died  insolvent. 

The  plaintiffs  thereon  demurred.  The  material  ground  of  the  demur- 
rer was  that  clause  in  the  deed  called  the  submission,  by  which  it  was 
expressly  provided  that  the  submission  should  not  vacate  or  expire  by 
the  insolvency  of  either  of  the  parties. 

The  defendant  joined  in  demurrer. 

To  the  fourth  plea,  the  plaintiffs  in  the  action  demurred,  and  for  cause 
of  demurrer  showed  that  by  the  submission  in  the  fourth  plea  mentioned, 
it  was  expressly  provided  that  the  submission  should  not  expire  by  death 
of  either  of  the  parties.     The  defendant  joined  in  this  demurrer. 

To  the  fifth  plea,  which  in  substance  relied  upon  the  death  of  Morri- 
son before  any  award  interim  or  final,  the  plaintiffs  demurred,  and  showed 
for  cause,  the  express  provision  in  the  submission  that  it  should  not  va- 
cate or  expire  through  the  decease  of  either  of  the  parties;  but  should, 
notwithstanding  such  an  event,  be  proceeded  in. 

The  defendant  joined  in  this  demurrer.  Tliis  was  the  substance  (so 
far  as  it  is  material  to  state  them)  of  the  pleadings. 

Brodrick,  for  the  plaintiff  in  error,  referred  to  Fynz'or's  case,  8  Rep. 
82  a.;  PoUs  v.  fVard,  1  Marsh,  3G6;  Toussaint  v.  Hartop,  7  Taunt. 
571;  Cooper  v.  Johnson,  2  ]i.  &  A.  394;  Charnley  v.  Winstanley,  5 
P^ast,  266;  Jlrlington  v.  Merrick,  2  Wms.  Saund.  414,  n.  4;  Weston 
V.  Barton,  4  Taunt.  673;  Litt.  s.  66;  Co.  Litt.  52  b.;  Roll.  Abr.  Feoff- 
ment, 1;  Bac.  Abr.  Authority  (E);  PVallace  v.  Cook,  5  Esp.  117;  Ro- 
by  V.  Twelves,  Styles,  423;  Tyler  v.  Jones,  3  B.  &  C.  144;  Clarke  v. 
Crofts,  4  Bingh.  143;  Dowse  v.  Coxc,  3  Bingh.  20,  6  B.  &  C.  255. 

Campbell,  contra,  relied  on  Tyler  v.  Jo7ies  and  Clarke  v.  Crofts. 

Cur.  adv.  vult. 

Alexander  C.  B.,  after  slating  the  pleadings  as  above,  proceeded  to 
deliver  the  judgment  of  the  Court. 


4  Bingham,  435.  33 

Two  questions  have  been  principally  argued,  one  of  which  is  a  ques- 
tion on  the  merits;  the  other  appears  to  be  of  form  only,  but  upon 
which  it  depends  whether  the  Court  can  get  at  the  merits. 

The  question  upon  the  merits  is,  Whether  the  award  is  invalid,  be- 
cause some  of  the  proceedings  were  had,  and  the  award  itself  was  made 
after  the  death  of  Morrison,  one  of  the  submitting  parties  ? 

What  I  consider  as  a  question  of  form  is.  Whether  the  pleadings  have 
been  so  managed  on  the  part  of  the  defendants  in  error,  that  the  Court 
can  take  notice  of  that  clause  in  the  submission,  which  it  is  contended 
preserves  the  validity  of  the  award,  notwithstanding  the  death  of  Morri- 
son before  it  was  made  ? 

The  argument  has  mainly  arisen  on  the  second  and  third  pleas,  and 
on  the  fourth  and  fifth  pleas,  together  with  the  subsequent  parts  of  the 
record  applicable  to  those  pleas.  The  fourth  and  fifth  pleas,  and  the 
subsequent  pleading  applicable  to  them,  is  what  first  calls  for  our  at- 
tention. 

The  fourth  and  fifth  both  say  the  award  is  invalid,  because  Morrison 
died  before  it  was  made. 

Tlie  defendants  in  error  say  by  tiieir  demurrers  that  fact  is  indifferent, 
because  there  is  an  express  provision  in  the  submission,  that  the  authori- 
ty should  not  expire  by  death. 

In  order  to  shut  out  this  clause  by  the  form  of  the  pleadings,  it  is  said 
that  those  pleas  and  the  demurrers  to  them,  must  be  treated  and  consi- 
dered as  if  no  other  pleas  had  appeared  on  the  record,  and  that  no  facts 
can  be  transferred  from  any  other  part  of  the  record,  in  order  to  enlarge 
the  statement  or  supply  the  deficiencies  of  these  particular  pleas  ;  and 
that,  therefore,  inasmuch  as  no  part  of  the  instrument  of  submission  is 
stated  either  in  the  fourth  or  fifth  pleas,  it  follows  of  course  that  it  does 
not  appear  upon  these  pleas  or  that  part  of  the  record  connected  with 
them,  that  the  deed  of  submission  contains  any  agreement  or  clause  like 
that  relied  upon,  namely,  that  it  should  not  be  vacated  by  the  death  of 
either  of  the  parlies  before  the  award. 

The  consequence  of  which  would  necessarily  be,  that  the  award  would 
l)C  void  by  the  general  law,  as  being  made  after  the  death  of  one  of  the 
parties. 

If  these  premises  were  true,  the  conclusion  would  seem  to  follow. 
But  are  they  true  ?  We  think  not.  Admitting,  that  in  ordinary  cases 
you  cannot  transfer  to  one  part  of  the  record  what  is  stated  in  anothci-, 
yet  if  that  plea  or  part  of  the  record  which  appears  deficient  docs  itself 
refer  to  another  which  supplies  that  deficiency,  then  we  may  avail  our- 
selves of  such  reference. 

Now  bore  there  is  such  a  reference.  The  second  plea  sets  out  the 
deed  of  submission  at  large,  with  the  clause  in  question  in  it. 

The  fourth  and  fifth  picas  now  under  discussion,  do  refer  to  the  second 
plea  and  the  deed  of  submission.  The  fourth  plea  begins  by  excepting 
what  is  excepted  in  the  introduction  to  the  second  plea,  (by  mistake  it 
is  called  the  first,  where  there  is  nothing  excepted,)  then  it  proceeds  to 
say,  that  Morrison  in  his  lifetime,  and  his  In-irs,  &.c.  did  p('rfi)rni  every 
covenant,  c-lnuso,  and  agreement  specified  in  the  said  deed  or  instrument 
of  submission,  wliiyh  lie,  his  lu-irs,  &,c.  ought  to  have  porforuied  ;is  (o 
any  interim  (h'cree,  and  as  to  the  residue  which  is  l)efi)re  excepted,  he 
says,  that  after  making  of  the  s.iid   deed,  or  in';tnunriil   of  siibiiiissinn, 

\  1)1..     XV.  ') 


34  M*Dou(;al  v.  Houeutson.  M.  T.  1827. 

and  belure  any  final  awartl,  Morrison  died.  Now  here  is  an  express 
reference  to  the  introtliiction  to  the  second  plea,  in  which  the  suhmis- 
sion  is  fouiul,  and  an  express  reference  to  the  deed  or  instrument  of  sub- 
mission, which  is  to  he  found  no  where  else  except  in  tlic  second  plea. 
AH  these  constitute  a  clear  reference  to  the  submission,  as  stated  in  the 
second  plea;  and  the  Court  thinks  such  reference  warrants  the  defend- 
ants in  error  in  their  demurrer  to  such  plea,  to  reler  to  the  provision 
in  the  submission,  as  stated  in  the  second  plea,  which  provides  that  it 
shall  not  expire  by  the  death  of  either  of  the  parties. 

In  this  way  we  think,  that  we  arc,  upon  the  particular  circumstances 
of  this  case,  relieved  from  those  difficulties  which  it  has  been  contended 
the  rules  of  pleading  oppose  to  our  getting  at  the  real  merits  of  the 
cause. 

This  brings  me  to  that  question.  It  is,  Whether  the  clause  inserted 
in  the  submission  is  vain  and  nugatory;  whether,  if  parties  so  stipulate, 
an  award  is  not  good  though  made  after  the  death  of  one  of  them? 

It  appears  to  the  Court  that  many  cases  have  decided  it. 

We  do  not  doubt,  that  where  there  is  no  express  stipulation  upon  the 
subject,  the  act  or  deatli  of  a  party  will  revoke  the  authority  given  to  an 
arbitrator,  and  render  an  award  made  after,  null  and  void. 

But  the  question  here  is,  whether  the  parties  cannot  validly  and  ef- 
fectively stipulate  that  death  shall  not  revoke  it. 

This  point  seems  perfectly  established.  It  is  somewhat  curious  to 
trace  the  history  of  the  practice  upon  this  subject. 

In  1817,  the  cause  of  Tonssnint  v.  Hariop  came  before  Lord  Chief 
Justice  Gibbs  and  the  Court  of  Common  Pleas, 

In  that  case  there  was  no  provision  of  this  sort.  The  Court  set  the 
au'ard  aside.  But  the  Lord  Chief  Justice  said,  "This  will  be  no  gene- 
ral inconvenience,  because  in  future  rules  a  provision  will  be  made  for 
the  case.'*' 

In  Cooper  v.  Jo/mson,  in  1819,  which  was  a  case  of  the  same  descrip- 
tion', the  Court  of  King's  Bench  did  the  same  thing,  l^ut  Lord  Chief 
Justice  %Bbbolt  said,  *<  It  may  be  proper  in  orders  in  Nisi  Prius  in  fu- 
ture, to  insert  a  clause  to  obviate  the  inconvenience  arising  from  the 
death  of  either  party  before  making  tiie  award." 

In  Blunddl  \.  Brettdrg/i,  17  Ves,  232,  in  1810,  Lord  ElJon  says, 
*' If  the  means  of  settling  terms  of  a  purcliase  are  an  award  and  umpir- 
age, the  terms,  unless  otherwise  contracted,  must  be  settled  while  the 
parties  arc  living." 

It  is  clear  that  all  the  three  courts  prospectively  considered  this  pro- 
vision as  tlic  means  of  preventing  this  inconvenience.  Accordingl)'-, 
when  these  means  are  resorted  to,  they  act  upon  it. 

Ty/er  v.  Jones  (1824)  is  exactly  in  point;  Clarke  v;  Crofts  (1827) 
is  also  exactly  in  point. 

The  case  of  Doivse  v.  Cox  (1825),  in  the  Common  Pleas,  is  every 
way  an  authority  upon  this  point.  It  w:is  reversed,  but  it  is  said,  in 
Clarke  v.  Crnfls,  upon  other  grounds. 

Every  view  of  justice  and  convenience  is  in  favour  of  these  authori- 
ties. 

This  is  the  answer  to  the  argument  on  the  fourth  and  fifth,  and  also  on 
the  second  and  third  pleas. 

But,  independently  of  this,  there  is  anoUicr  answer  to  the  second  and 


4  Bingham,  435.  35 

third  pleas.  In  the  replication  to  these  pleas,  after  detailing  with  great 
minuteness  all  the  proceedings,  it  avers  that  these  proceedings  are  valid 
and  effectual  according  to  the  law  of  Scotland.  That  fact  is  not  traversed 
as  it  might  have  been,  therefore  it  is  admitted. 

It  stands  admitted  upon  those  pleas,  and  the  replication  to  them,  and 
the  subsequent  pleading  upon  that  part  of  the  case,  that  by  the  law  of 
Scotland  all  these  proceedings  under  the  submission  are  valid  by  the  law 
of  Scotland. 

We  all  agree  in  thinking  that  the  judgment  must  be  affirmed. 

Judgment  affirmed. 


ENJ)  or  MICHAELMAS  TERM. 


CASES 

ARGUEU  AND   DETERMINED 

IN    THE 

COURT  OF  COMMON  PLEAS, 

AND  OTHER  COURTS, 

IN 

HILARY  TERM, 

In  the  Eighth  and  Ninth  Years  of  the  Reign  of  George  IV. — 1828. 

DUE  dem.  TILT  v.  STRATTON.— p.  446. 

Where  a  tenant  entered  under  an  agreement  for  a  lease  for  seven  years,  which 
Was  never  executed  :  Held,  that  he  was  not  entitled  to  notice  to  quit  at  the  end 
of  the  seven  years. 

The  lessor  of  the  plaintiff  had  entered  into  an  agreement  to  grant  to 
the  defendant  a  lease  of  the  premises  described  in  the  declaration,  for 
seven  years,  to  commence  on  the  29th  of  September  1820.  The  lease 
was  never  executed,  but  the  defendant  occupied  the  premises,  and  paid 
the  rent  which  was  to  iiave  been  reserved  by  the  lease.  On  the  29th 
September  1S27,  the  defendant  having  received  no  notice  to  quit,  refused 
to  deliver  up  the  premises  to  the  lessor  of  tiiC  plaintifl',  whereupon  the 
present  action  was  commenced. 

At  the  trial  before  Best  C  3.,  Middlesex  sittings  after  Michaelmas 
term  last,  a  verdict  was  taken  for  the  lessor  of  the  phiintiflQ  with  liberty 
for  the  defendant  to  move  to  enter  a  nonsuit,  if  the  CoUrt  should  be  of 
opinion  that  he  was  entitled  to  notice  to  quit. 

Jones  Serjt.  accordingly  now  moved  to  enter  a  nonsuit,  on  the  ground 
that  the  defendant  held  as  a  mere  tenant  from  year  to  year,  and  as  such, 
was  entitled  to  notice  to  quit.  He  cited  Haintrlon  v.  Stead,  3  B.  & 
C.  4  7S,  and  Mann  v.  Luvejoy,  1  Ryan  &  Moody,  356. 

Best  C.  J.  We  should  multiply  notices  to  quit  unnecessarily,  if  we 
l)cld  that  this  action  did  not  lie.  Within  the  seven  years  the  defendant 
could  not  have  been  turned  out  without  notice;  but  at  the  end  of  the  se- 
ven years  the  contract  itself  gives  him  sufficient  notice.  The  point  is, 
in  effect,  decided  in  Doe  deni.  Bloomficld  v.  Smith,  G  East,  520,  and 
Doc  dem.  OldenJiaw  v.  Breach,  G  Esp.  N.  P.  C.  lOfi. 

Park  J.  concurred. 

BuRROuoii  J.  During  the  seven  yenr.«  notice  would  have  been  ne- 
cessary, but  not  at  the  end  of  that  ])criod. 


4  Bingham,  454.  37 

Gaselee  J.    Notice  was  not  necessary  in  this  case,  nor  docs  the  agree- 
ment give  one  party  any  advantage  over  the  other. 

Rule  refused. 


SCALES  V.  PICKERING.— p.  448. 

By  s.  32.  of  a  private  act  of  parliament,  a  water  company  was  empowered  to 
"  break  up  the  soil  and  pavement  of  roads,  highways,  footways,  commons, 
streets,  lanes,  alleys,  passages,  and  public  places,"  provided  (s.  34)  that  they 
should  not  enter  any  private  lands  without  the  consent  of  the  owner :  Held, 
that  the  company  had  no  authority,  without  the  consent  of  the  plaintiff,  to  en- 
ter a  field  of  his,  over  which  there  was  a  public  footpath. 


BURDEN  V.  HALTON.— p.  454. 

The  defendant  had  given  the  plaintiff  bills  for  goods,  which  bills  had  been  trans- 
ferred to  a  third  person;  but  at  the  time  of  the  trial  of  an  action  for  the  value 
of  the  goods,  though  not  at  the  commencement  of  the  action,  they  Avere  again 
in  the  plaintiff's  hands  overdue  and  unpaid  by  the  defendant:  Held,  he  was 
liable,  notwithstanding  he  had  given  the  bills. 

This  was  an  action  brought  to  recover  237/.,  alleged  to  be  due  from 
the  defendant  for  embroidery.  At  the  trial  of  the  cause  before  5wr- 
rough  J.,  Middlesex  sittings  after  Trinity  term,  it  appeared  in  evidence, 
that  the  defendant  had  accepted  two  bills  drawn  upon  him  by  the  plain- 
tiff in  respect  of  the  account  between  them,  one  for  100/.,  and  another 
for  146/.;  that  these  bills  had  been  transferred  by  the  plaintiff  to  mer- 
chants in  the  city;  but  that  after  the  commencement  of  the  action,  though 
before  trial,  they  were  again,  without  any  money  having  passed,  placed 
in  the  plaintiff's  hands,  where  they  remained  at  the  time  of  the  trial, 
overdue  and  unpaid  by  the  defendant.  It  was  objected  by  the  defendant's 
counsel,  that  on  this  proof  the  plaintiff  should  be  nonsuited,  inasmuch  as 
it  did  not  appear  that  the  bills  had  been  paid  by  the  plaintiff,  and  the  de- 
fendant might  still  be  liable  on  them.  The  learned  Judge  overruled  this 
objection,  and  directed  the  jury,  that  as  the  defendant  had  not  paid 
the  bills,  and  they  were  again  in  the  plaintiff's  hands,  the  circumstance 
of  their  having  been  in  the  hands  of  a  third  person  amounted  to  nothing, 
and  could  not  affect  the  plaintiff's  right  to  recover. 

Jones  Scrjt.  now  moved  for  a  rule  nisi  to  enter  a  nonsuit  or  have  a  new 
trial  on  the  above  objection.  He  cited  Kearslake  v.  Morgan,  5  T.  R. 
.51.3,  and  Dangerfichl  v.  IVilhy,  4  Esp.  159. 

lii:sT  C.  .[.  There  is  no  evidence  of  these  bills  having  been  transferred 
to  the  indorsees  for  consideration,  and  they  were  sent  back  to  the  plain- 
tiff without  any  money  passing.  The  authorities  shew,  that  if  the  bills 
had  remained  in  the  hands  of  third  persons,  that  would  have  been  a  de- 
fence to  the  action,  because  the  defendant  might  have  been  called  on  to 
pay  them:  but  as  they  were  in  the  hands  of  the  plaintiff,  and  overdue  at 
the  time  of  the  trial,  that  could  never  happen. 

Rule  refused. 


38  Rknson   v.  Hivi'ius.  H.  T.  1828. 


BENSON  V.  HIPPIUS.— p.  455. 

The  charterer  of  a  ship  liaving  consigned  his  cargo  to  P.,  who  placed  it  in  defend- 
ant's hands  to  sell  it,  the  defendant,  by  an  agreement  which  stated  those  facts, 
undertook  to  pay  pluintifT,  the  owner  of  the  ship,  freight  and  demurrage,  if  any 
were  duf,  and  in  every  reHi)ect  to  ])ut  himself  in  place  of  the  charterer. 

Fifty  running  days  were  allowed  by  the  charter-party  for  loading  and  un- 
loading, and  ten  for  demurrage,  at  10/.  a  day.  The  ship  having  occupied  nine- 
ty-five days  in  loading  and  unloading,  several  of  which  elapsed  after  the  date 
of  the  defendant's  agreement:  Held,  that  he  was  liable  in  damages  in  respect 
of  demurrage  for  tlie  whole,  and  tliat  a  sufficient  consideration  appeared  on  the 
face  of  the  agreement. 

Br  charter-party  of  March  1825,  between  the  plaintiff,  owner  of 
the  ship  Trusty,  and  B.  T.  Gillam,  tlie  ship  was  to  proceed  to  Quebec 
to  load  a  cargo  of  timber,  &c.  and  proceed  therewith  to  London.  "Fifty 
running  days  were  to  he  allowed  for  loading  the  ship  at  Quebec,  and  un- 
loading i^i  London,  and  ten  days  on  demurrage,  over  and  above  the  said 
laying  days,  at  10/.  per  day.  Penalty  for  non-performance  of  the  agree- 
ment, 2000/." 

The  ship  having  taken  in  her  cargo  at  Quebec,  returned  to  London, 
Gillam  having  consigned  the  cargo  to  Pirie  and  Co.  on  payment  of  freight 
as  per  charter-party;  and  on  her  arrival,  the  defendant  addressed  the 
following  letter  to  the  plaintifl,  who  refused  to  deliver  the  cargo  without 
the  undertaking  contained  in  the  letter. 

London,  Sept.  21.  1825. 
Mr.  Thomas  Benson, 
Sir, — Messrs.  John  Pirie  and  Co.,  the  consignees  of  your  ship  Trus- 
ty's cargo,  having  placed  it  in  my  hands  for  sale,  I  hereby  engage  to  pay 
you  the  freight,  primage,  and  demurrage,  if  any  be  due,  and  iii  every 
respect  to  put  myself  in  the  place  of  Mr.  Gillam,  the  charterer,  so  far  as 
respects  tiie  agreement  made  with  you  for  the  Quebec  voyage. 

C.  J.  Hippius. 

Ninety-five  days  having  been  occupied  in  loading  and  unloading  in- 
istead  of  fifty,  the  plaintiff  sued  the  defendant  on  this  undertaking  for 
damages  in  respect  of  forty-five  days'  demurrage,  several  of  which  days 
had  elapsed  subsequently  to  the  date  of  the  above  letter. 

The  declaration,  after  setting  out  the  charter-party,  stated  the  voyage 
out  and  return  of  the  ship  to  London,  that  she  was  ready  to  discharge 
licr  cargo  in  the  docks,  and  that  Pirie  and  Co.,  to  whom  the  cargo  was 
consigned,  had  requested  the  defendant  to  sell  it  for  them;  that  the  defend- 
ant thereupon,  in  consideration  that  the  plaintiff,  at  defendant's  special 
instance  and  request,  would  deliver  to  him  the  cargo  according  to  the 
terms  of  the  charter-party,  undertook  and  promised  the  plaintiff  to  pay 
him  the  freight,  primage,  and  demurrage  for  the  same,  if  any  should  be 
or  become  due,  and  in  every  respect  to  put  himself  in  the  place  of  the 
charterer  of  the  ship,  so  far  as  respected  the  agreement  made  with  the 
plaintiff  for  the  said  A'oyage;  that  the  ship  was  detained  in  loading  and 
unloading  fifty  days  above  the  fifty  running  days  in  the  charter-party 
mentioned;  that  100/.  thereupon  became  due  for  ten  of  the  fifty  super- 
numerary days  for  demurrage,  according  to  the  terms  of  the  charter- 
party;  and  that  the  plaintiff  for  the  detention  of  the  ship  forty  days,  resi- 


4  Bingham, 455.  39 

due  of  last  mentioned  fifty  days,  deserved  to  have  of  the  defendant  ac- 
cording to  his  undertaking  400/.  more.     Breach,  non-payment. 

The  defendant  pleaded  the  general  issue,  and  paid  100/.  into  Court. 

At  the  trial  before  GaseleeJ.,  London  sittings  after  Michaelmas  term, 
the  jury  found  a  verdict  for  the  plaintiflf  300/.  damages  beyond  the  100/. 
paid  into  pourt,  the  defendant  having  leave  to  move  to  enter  a  nonsuit 
upon  certain  objections  to  the  declaration. 

Taddy  Serjt.  now  moved  accordingly,  upon  the  ground, 

First,  that  this  was  an  undertaking  by  the  defendant  for  the  debt  or 
default  of  another,  and  that  no  sufficient  consideration  moving  from  the 
plaintiflf  to  the  defendant  appeared  on  the  face  of  the  agreement, —  Wain 
V.  JVarlters,  5  East,  10;  ISaunders  v.  Wakefield,  4  B.  &  A.  595, — in- 
asmuch as  the  plaintiff  was  not  the  person  who  placed  the  cargo  in  the 
defendant's  hands,  nor  had  he  any  lien  on  it,  if,  as  according  to  the  lan- 
guage of  the  agreement,  it  was  already  in  the  hands  of  the  defendant. 

Secondly,  that  the  consideration,  if  any  existed,  was  not  correctly 
stated  as  being  that  plaintiff  would  deliver,  when  the  writing  purported 
that  he  had  delivered. 

Thirdly,  that  the  defendant  was  only  liable  for  demurrage  under  his 
agreement,  and  not  for  tortious  detention  by  the  captain  or  others,  more 
particularly  subsequent  to  the  date  of  the  defendant's  letter.  The  ten 
days  during  which  the  ship  had  been  occupied  beyond  the  fifty  running 
days  gave  rise  to  a  claim  for  demurrage  to  which  the  charterer  might  have 
been  liable  under  the  charter-party,  and  the  defendant,  perhaps,  under 
his  agreement:  the  remaining  thirty-five  days  were  taken  up  by  a  deten- 
tion for  which,  upon  this  declaration,  the  defendant  was  not  answerable, 
either  according  to  the  terms  of  the  charter-party  or  of  his  agreement. 

Best  C.  J.  It  has  been  ol^ected  to  the  plaintifi's  recovering  in  this 
case,  that  in  the  agreement  which  is  the  ground  of  the  action  there  is  no 
consideration  moving  from  the  plaintiff  to  the  defendant,  and  that,  there- 
fore, the  action  does  not  lie.  But  from  the  defendant's  letter  of  the  21st 
of  September,  which  constitutes  the  agreement,  it  appears,  that  the  plain- 
tiff was  owner  of  a  ship,  the  cargo  of  which  had  been  consigned  to  Piric 
and  Co.,  and  that  they  had  authorized  the  defendant  to  sell  it:  the  de- 
fendant, who  could  not  sell  it  without  the  consent  of  the  plaintiff,  in  or- 
der to  obtain  lliat  consent  undertakes  to  pay  demurrage  on  tlie  ship,  if 
any  be  due.  Theue  is  a  sutVicient  consideration  moving  from  the  plain- 
tiff. It  has  been  argued,  indeed,  that  demurrage  only  could  be  recov- 
ered under  the  charter-party,  and  that  the  defendant  cannot  be  sued  for 
tlie  detainer  of  the  ship,  especially  for  that  which  occurred  subsequently 
to  the  date  of  the  defendant's  letter.  But  the  defendant  undertakes  not 
only  to  pay  the  freight  and  demurrage  due  from  Piric  anil  Co.,  but  in 
all  respcTts  to  ])iit  himself  in  the  place  of  (iillam,  the  charterer,  so  far 
as  res])ect3  the  Quebec  voyage.  Now  there  can  be  no  doubt  that  Gil- 
lam  was  bound  for  all  dolention  beyond  the  fifty  running  days  allowed 
by  the  cliarlcr-parly.      Detention  and  dennui-age  mean  the  sainc  thing. 

Rule  refused. 


SEACO  V.   ]>KANE.— p.  1.5l>. 

Defendant  aprccd  to  pay  i>]aiini(T,  in  consulcrntinn  (if  lu-r  hiTOiniiip,  Uis  Itiiaiil, 
20/.  to  repair  llielinuse,  ai\il  aVs'i  to  nialcc  certain  alterations. 


40  Seago  v.  Deane.   H.  T.  1828. 

riaintiff  became  tenant  under  a  lease,  in  which  this  agreement  was  not  stated, 
and  ditl  the  repairs;  when  defendant  promised  to  pay  for  them: 

Held,  that  lie  was  liable,  at  all  events,  on  the  account  stated,  although  the 
agreement  had  not  been  introduced  into  the  lease. 

The  plaintifl' declared,  that  in  consideration  she,  at  the  request  of  the 
defendant,  would  become  tenant  to  the  defendant  of  a  house  and  premises 
in  Surrey,  at  a  yearly  rent  of  39/.,  under  a  lease  thereof,  to  be  granted 
to  her  by  the  defendant,  the  defendant  undertook  and  promised  to  pay 
her  the  sum  of  20/.  to  repair  the  house;  and  also  that  he  would  make  an 
opening  from  the  cellar  of  the  house  into  Wandsworth  Lane,  and  put 
three  stone  steps  from  the  cellar,  and  make  a  door  in  the  house  to  open 
into  Wandsworth  Lane,  to  enable  plaintiff  to  take  out  coals  from  the 
cellar: 

That  plaintiff  became  tenant  of  the  house,  &c.  to  the  defendant,  at  the 
rent  aforesaid,  under  a  lease  granted  to  her  by  the  defendant;  but  that 
though  a  reasonable  time  had  elapsed  and  a  request  had  been  made  to  the 
defendant  to  perform  his  agreement,  he  had  never  given  the  plaintiff  the 
20/.  to  repair  the  house,  nor  had  he  made  the  opening  from  the  cellar, 
nor  put  steps,  nor  made  a  door. 

There  were  counts  for  work  and  labour  and  materials,  for  money 
paid,  and  for  money  due  upon  an  account  stated. 

At  the  trial  before  Gaselee  J.,  Middlesex  sittings  after  Michaelmas 
term,  it  appeared  that  the  defendant  had,  by  parol,  given  a  promise  to 
the  effect  stated  in  the  declaration;  that  in  consideration  of  such  promise 
the  plaintiff  had  become  tenant  of  the  defendant's  house  under  a  lease, 
which  did  not  contain  any  covenant  from  the  defendant  to  the  effect  of 
the  above  promise;  that  the  plaintiff  had  done  the  repairs,  and  that  the 
defendant,  upon  being  applied  to  before  the  action  was  brought,  said, 
*' I  cannot  pay  you  now,  but  will  out  of  the  next  rent."  A  verdict 
having  been  given  for  the  plaintiff  for  20/,, 

PVilde  Serjt.  now  moved  to  enter  a  nonsuit  instead,  or  to  arrest  judg- 
ment, on  the  ground,  that  this  being  an  agreement  concerning  an  inter- 
est in  land,  could  only  be  evidenced  by  writing;  and  secondly,  that  the 
oral  contract  having  been  executed  by  the  granting  of  a  lease  in  writing, 
nothing  could  be  claimed  that  was  not  stipulated  for  in  that  lease;  Kain 
v.  Old,  2  B.&C.  G27,  Pickering  v.  Dowson,  4  Taunt.  779;  nor  could 
any  consideration  be  shewn  for  the  plaintiff's  becoming  tenant  that  was 
not  theie  specified.  As  to  the  count  upon  the  account  stated,  the  plain- 
tiff must  first  shew  the  contract  and  then  tlic  adn^ission  applicable  to  it: 
but  if  llie  contract  on  which  the  admission  was  made,  were  void,  so  was 
the  admission. 

Best  C.  J.  This  is  one  of  the  most  iniquitous  objections  ever  made. 
The  contract  has  been  clearly  proved,  and  the  objection  is  purely  techni- 
cal. It  must  however  avail,  if  it  be  well  founded.  If  tiiis  agreement 
were  pnrt  of  the  consideration  for  the  j)lainliff's  engagement  under  a  lease, 
and  it  did  not  appear  as  part  of  the  terms  of  the  lease,  the  omission  could 
not  be  supplied  by  parol  evidence.  The  agreement,  too,  as  concerning 
an  interest  in  land,  ought  to  have  been  in  writing.  Mad  the  plaintiff, 
therefore,  been  compelled  to  rely  on  the  special  count,  she  could  not  have 
rccovercil. 

])Ut  the  plaintiff  (lid  the  thing  in  question,  and  after  she  had  done  it, 
the  defendant,  on  being  applied  to,  said,  "1  cannot  pay  you  now,  but 


4  Bingham, 459.  41 

will  out  of  the  next  rent."  That  declaration  was  admissible  in  evidence 
upon  the  account  stated,  and  was  not  aflected  by  the  provisions  of  the 
statute  of  frauds.  There  was  a  moral  obligation  to  pay  and  a  distinct 
promise;  and  there  are  many  cases  which  shew  that  a  moral  obligation, 
accompanied  with  a  distinct  promise,  is  binding  in  law. 

Park  J.  This  defence  is  so  wicked  and  so  manifestly  unjust,  that 
even  if  the  law  w^ere  with  the  defendant  the  Court  would  not  interpose, 
unless  the  point  were  reserved.  But  on  the  account  stated  the  plaintiff 
is  clearly  entitled  to  recover. 

BuRROUGH  J.  It  appears  to  me  that  this  was  a  bargain  altogether  in- 
dependent of  the  lease,  and  the  conduct  of  the  parties  shews  it  to  h,ve 
been  so, 

Gaselee  J.  If  this  had  been  an  action  against  the  landlord  for  not 
granting  a  lease,  or  against  the  tenant  for  not  taking  it,  the  objection  on 
the  statute  of  frauds  must  have  prevailed;  but  here  the  bargain  was  exe- 
cuted, and  the  plaintiff  was  entitled  to  recover  u])on  the  account  stated. 

This,  however,  was  a  contract  independent  of  the  lease;  and  it  is  clear, 
that  though  a  party  be  not  bound  by  a  contract,  yet  if  he  makes  a  pro- 
mise after  it  has  been  performed,  he  is  liable  upon  an  account  stated. 

Rule  refused. 


EARLE  V.  HOLDERNESS.— p.  462. 

In  troverfor  a  packet  of  letters,  the  defendant  was  allowed  to  stay  proceedings  as 
to  one  of  them,  upon  delivering  it  up  and  paying  costs. 

Trover  for  certain  letters  or  packets.  Upon  the  death  of  Nanny 
Hewlings,  the  defendant  received  a  notice  from  her  brother,  on  behalf 
of  himself  and  her  next  of  kin,  not  to  part  with  any  letters  or  packets 
addressed  to  her,  or  to  any  person  connected  with  her  affairs;  and  a  simi- 
lar notice  from  one  Owen  Kernan,  who  claimed  to  be  her  executor. 

The  defendant  being  in  possession  of  some  letters  or  packets  of  Nanny 
Hewlings, — which  he  ha(i  received  from  Demerara,  among  which  was 
one  addressed  to  •'  Mr.  Earle,  (Mapham,  Surrey,"  and  all  of  which  he 
believed  to  relate  to  the  afl'airs  of  the  deceased, -^under  the  advice  of 
counsel,  refused  to  deliver  them  to  the  plaintiff,  but  offered  to  open  in 
his  pre.sence,  and  in  the  presence  of  the  brother  of  the  deceased,  and  of 
Owen  Kernan,  the  letter  addressed  to  the  plaintiff,  the  defcnrlant  having 
no  interest  in  any  of  the  documents,  and  wishing  only  to  secure  himself. 

This  was  not  agreed  to,  and  tUii  pluintilf  commenced  the  present  ac- 
tion; whereupon, 

The  defendant,  upon  affidavit  of  the  above  fads,  obtained  a  rule,  call- 
ing on  the  plaintid  to  shew  cause  whv,  upon  delivering  up  to  the  plain- 
tiff the  letter  addressed  to  Mr.  Earle,  Clapham,  Surrey,  and  upon  pay- 
ment of  the  costs  of  the  action  uj)  to  that  time,  all  fuither  proceedings  in 
the  cause  shouKI  not  be  stayed.  /'ic/ccring  v.  Trustc,  7  T.  11.  53,  and 
liriinsdrn  v.  Austin^  Tidd's  Pr.  .571,  were  referred  to. 

Tddih/  Serjl.  who  shewed  cause,  contended,  that  the  defendant,  not 
being  executor  of  Mrs.  Hewlings,  nor  hctting  up  any  right  to  the  letter, 
had  no  claim  to  the  indulgence  of  the  Court;  thai  he  ought  to  ofler  all 
the  letters  or  none;  and  that  he  could  not  be  permitted  to  stay  the  plain- 

VOL.    XV.  6 


42  AucHEK  v.  Hale.  H.  T.  1828. 

titty's  proceedings  upon  giving  up  only  a  portion  of  what  the  plaintiff 
sought  to  recover.  It  was  impossible  to  say  what  damages  the  plaintiff 
might  sustain  by  the  detention  of  any  of  the  papers.  In  Pickering;  v. 
Tnisfe  the  value  of  the  goods  was  admitted,  and  in  Brunsden  v.  ^us/in 
there  was  no  dispute  on  that  point. 

IVilde  Scrjt.  was  heard  in  supj)ort  of  the  rule. 

Best  C.  J.  Brunsden  v.  »/??/5/?n  is  expressly  in  point.  There,  a  defen- 
dant in  trover  was,  upon  terms,  permitted  to  surrender  a  part  of  a  steam- 
engine,  which  he  admitted  the  plaintiff  to  be  entitled  to.  Here  the  action 
is  brought  for  a  bundle  of  letters,  and  the  defendant  says  "  1  will  defend 
for  all  but  one."  On  that  authority,  therefore,  we  should  be  disposed 
to  grant  the  rule.  But  the  moment  the  Court  went  the  length  of  saying, 
that  if  a  party  brought  into  court  the  goods  in  dispute,  proceedings  should 
he  stayed,  they  decided,  in  principle,  the  present  question  also,  because, 
if  they  could  do  it  as  to  the  whole,  they  could  do  it  upon  terms  as  to 
part. 

The  defendant  must  pay  the  costs,  because  he  has  asked  to  stay  the 
proceedings  generally,  which  is  too  much;  but  on  handing  over  to  the 
plaintiff  the  letter  in  question,  with  the  costs  of  the  motion,  and  under- 
taking to  pay  the  costs  of  the  action,  if  the  plaintiff  recovers  on  the  other 
letters,  or  more  than  nominal  damages  on  this,  the  defendant  is  entitled 
to  have  his  rule  made  absolute. 

The  rest  of  the  Court  concurred,  and  the  rule  was  made  absolute  upon 
the  following  terms  : — 

The  defendant  to  deliver  the  letter  in  question  to  the  plaintiff  upon 
payment  of  the  costs  of  the  application;  and  if  the  plaintiff  would  accept 
that  letter  with  the  costs  of  the  action  in  discharge  of  the  action,  pro- 
ceedings to  be  stayed:  if  not,  the  plaintiff  to  proceed;  and  in  case  he 
should  not  recover  damages  for  the  other  letters,  or  nominal  damages 
only  for  the  letter  in  question,  to  pay  the  costs  of  the  action. 


ARCHER  V.  HALE.— p.   464. 

The  plaintiff  and  defendant  in  a  replevin  suit  referred  the  cause  to  an  arbitrator^ 
and  agreed,  without  the  privity  of  the  sureties,  that  the  replevin  bond  should 
stand  as  a  security  for  the  performance  of  the  award  :  held,  that  the  sureties 
were  discharged. 

Park  J.  This  was  an  action  of  replevin,  and  the  case  came  before  the 
Court  last  term  upon  a  rule  to  shew  cause  why  the  verdict  obtained  by 
the  plaintiff  at  the  preceding  Spring  assizes  for  the  county  of  Herts  should 
not  be  set  aside;  and  why  the  defendant  should  not  be  at  liberty  to  enter 
a  verdict  for  556/.  found  to  be  due  to  him  for  rent,  by  the  award  of 
James  Bowling,  Esq.  the  arl)itrator  in  tlie  said  rule  named. 

This  rule  was  drawn  up  upon  reading  the  record  of  nisi  priuSy  and  a 
rule  made  in  this  cause  on  the  Wednesday  preceding,  and  the  affidavit 
of  the  attorney  for  the  defendant,  the  avowant.  In  order  to  understand 
the  case  it  must  be  observed,  that  an  application  had  been  made  to  this 
Court  to  set  aside  a  verdict  which  the  plaintiff  in  replevin  had  obtained, 
upon  payment  of  costs  by  the  defendant,  both  of  the  trial  and  of  the  then 
application;  and  that  the  defendant  should  be  at  liberty  to  add  other 


4  Bingham,  464.  43 

avowries;  but  if  tlie  plaintifl"  would  consent  to  refer  to  any  arbitrator  to 
say  what  was  clue  for  rent,  then  the  rule  was  to  be  discharged  upon  pay- 
ment of  the  costs  of  the  action  by  the  defendant  to  the  plaintifT;  the  costs 
of  the  reference  to  be  in  the  discretion  of  the  arbitrator:  and  it  was 
further  stated,  that  tlie  replevin  bond  should  stand  as  asecurity  for  such 
sum  as  should  by  him  be  found  to  be  due. 

These  last  words  will  be  found  to  be  most  material,  as  upon  them 
much  of  this  decision  will  depend. 

After  the  above  rule  was  made  the  parties  did  agree,  and  an  order  was 
accordingly  made  by  such  agreement,  by  my  learned  Brother  GaseleCf 
to  refer  the  matter  to  James  Dowling,  Esquire,  barrister  at  law. 

Upon  this  reference  it  appears  the  learned  gentleman  mentioned  in 
the  order  of  Mr.  Justice  Gaselee  proceeded,  and  found  the  sum  of  556/, 
sterling  to  be  due  from  the  tenant,  the  plaintiff,  which  plaintiff  is  now 
insolvent,  as  it  is  sworn,  and  as  is  probably  the  case;  and  the  defendant 
lias  paid  to  the  plaintiff  the  costs  taxed  by  the  prothonotary,  as  one  of  the 
above-mentioned  rules  requires. 

It  is  positively  sworn,  not  only  by  the  attorney  for  the  plaintiff,  but 
by  both  the  sureties  in  the  replevin  bond,  that  they  never  were  parties 
to  these  proceedings;  that  they  were  taken  and  entered  into  without  their 
jirivity  or  concurrence;  that  if  the  sureties  had  been  applied  to,  they 
would  not  have  consented  thereto,  and  that  by  such  proceedings  having 
been  taken  without  their  consent,  they  considered  themselves  discharg- 
ed from  all  future  liability. 

The  question  is,  whether  under  the  circumstances  they  are  discharged? 
for  there  seems  no  reason  to  say,  if  they  should  be  so  considered  by 
the  Court,  the  principal  may  not  remain  liable  upon  this  award. 

Let  us  first  see  what  the  condition  of  a  replevin  bond  is.  It  is  that 
the  plaintiff,  the  tenant,  shall  appear  at  the  next  county  court  and  prose- 
cute his  suit  with  effect  and  without  delay  against  the  avowant,  for  ta- 
king &.c.  his  cattle,  goods,  and  chattels,  and  make  return  of  the  said 
cattle,  goods,  and  chattels,  if  a  return  thereof  shall  be  adjudged.  This 
is  all  tlie  surety  undertakes  to  do  or  to  see  done. 

This  is  the  only  security  which  by  virtue  of  the  statute  11  G,  2.  c. 
19.  s.  23..  the  person  granting  replevins  is  authorized  to  demand,  and 
the  onlv  securivy  into  whicli  these  sui-eties  have  entered. 

Hut  here  the  replevin  b(jnd,  it  is  said,  is  to  stand  as  a  sccuril)^;  and 
that  the  .sureties,  the  principal  being  insolvent,  are  bound  to  pay  the 
whole  of  this  rent,  viz.  53(')/. 

■  'i'he  surety  says,  jion  hrrc  in  Jccdcra  vcni;  this  is  by  no  means  the 
rngagement  I  entered  into;  I  only  undertook  that  the  tenant  should 
jirosecute  his  suit  with  effect  and  without  delay;  and  that  return  should 
be  made  of  the  goods  seiz.ed,  if  that  return  should  be  adjudged. 

Upon  this  motion  it  was  urged,  thatthe  condition  of  the  sureties  wa.s 
not  altered  by  acceding  to  an  arbitral  ion;  .nnd  the  authority  of  Lord 
Chief  .Instic.e  (iihhs  i\\n\  the  (^ourt  of  Common  PIe;is  was  pressed  upon 
us  as  having decidf.d  the  point:  first,  in  \.\niciiHCo^  Moinc  v.  Jioitundkcr, 
2  Marsh,  81,  and  H  Taunt.  37J),  where  on  a  motion  the  (/ourt  held, 
Lord  Chief  Justice  (iihbs  then  presiding,  that  the  sureties  in  a  replevin 
were  not  discharged  by  time  being  given  to  the  plnintid'  in  replevin  by  a 
I  e  fere  nee. 

This  case  was  so  decided  in  IMJ.'),  before  any  of  the  present  .Iudgr\  sat 
III  this  Court. 


44  Archeu  v.  Halk.  H.  T.  1828. 

The  same  case  afterwards  came  ou  again  before  this  Court  upon  a  de- 
murrer to  the  pleas  of  thedefendant,  2  Marsh.  392,  and  7  Taunt.  97,  my 
Brother  Burrouf^k  and  I  being  tlien  Judges  of  this  Court;  but  the  case 
having  been  so  recently  decided  by  four  most  eminent  persons,  and  no 
case  having  been  quotedto  the  contrary,  judgment  went  the  same  wiy, 
upon  the  principle  that  the  sureties,  in  order  to  shew  that  theyoughtto 
be  relieved,  must  convince  the  Court  that  their  situation  is  in  fact  al- 
tered. 

Even  upon  the  present  motion,  these  cases  were  quoted,  and  our  at- 
tention was  drawn  to  no  other  by  counsel  on  cither  side,  and  accordingly 
we  gave  judgment  against  the  sureties.  But  when  I  went  home,  upon 
reference  to  other  cases  with  which  my  own  private  memorandums 
furnished  me,  1  found  that  the  very  case  of  Moore  v.  Bowmaker  had 
been  overturned  in  another  place;  the  decision  of  the  Court  of  Common 
Pleas  had  been  found  to  be  wrong;  I  therefore  stayed  the  judgment. 

Upon  the  above  decision  in  tins  Court,  it  appears  that  a  bill  was  filed, 
and  that  an  application  was  made  for  an  injunction  on  the  equity  side  of 
tlic  Court  of  Exchequer,  3  Price,  214.,  to  restrain  the  proceedings  in 
this  Court  on  the  replevin  bond;  and  after  argument  by  counsel  on  both 
sides,  that  Court  unanimously  decided  that  the  condition  of  the  bond, 
being  an  undertaking  on  the  part  of  the  surety  that  the  principal  should 
prosecute  his  writ  with  effect  and  without  delay,  and  make  return  of 
the  goods  seized,  if  so  adjudged;  and  the  landlord  and  tenant  unknown 
to  the  surety,  and  without  his  concurrence,  having  entered  into  an  agree- 
ment referring  matters  to  arbitration  [whereby  the  tenant  was  precluded 
from  proceeding  according  to  the  condition,  and  under  the  agreement  to 
stay  all  proceedings  pending  the  arbitration  was  restrained  by  the  act 
of  the  landlord  from  doing  that  which  his  surety  had  engaged  he  should 
Uo];  when  the  agreement  of  reference  was  executed,  the  bond,  as  against 
the  surety,  was  functus  ofdcio:  and  the  Court,  therefore,  granted  the  in- 
junction. 

Recollecting,  as  those  who  sit  here  do,  what  a  very  eminent  person 
presided  in  the  Court  of  Exchequer  at  the  time  of  the  above  decision, 
the  depth  and  solidity  of  his  learning  upon  all  subjects,  particularly  upon 
those  connected  with  a  correct  administration  of  his  high  office,  the 
accuracy  and  correctness  of  his  understanding,  the  anxiety  with  which 
he  investigated  every  subject  that  came  before  him,  and  the  extreme 
caution  with  which  he  arrived  at  his  conclusions,  they  must  agree  with 
me  that  any  decision' of  Lord  Chief  Baron  Thompson  is  entitled  to  the 
highest  respect  and  consideration  from  every  Judge  who  either  now  sits 
or  hereafter  shall  sit  in  Westminster  Hall. 

This  case,  however,  came  on  again  upon  the  merits  before  Lord  Chief 
Baron  Richards,  was  then  fully  argued  by  counsel,  and  it  appears  that 
he  had  then  the  two  decisions  of  the  Couit  of  Common  Pleas  fully  before 
him;  and  after  time  taken  to  consider,  his  Lordship,  after  a  most  elaborate 
argument,  granted  a  perpetual  injunction  against  tiie  proceedings  in  this 
Court;  and  the  Lord  Chief  Bnron  thought  tiiat  whether  the  surety  was  in 
fact  placed  in  a  different  situation  by  vvliat  had  taken  place  on  the 
arrangement  between  the  landlord  and  tenantwas  less  the  question,  than 
whether  by  such  change  of  situation  he  might  have  been  prejudiced:  not 
whether  he  did  in  fact  actually  sustain  any  injury  in  consequence: 
And  Lord  Cliancellor  ^7</on,  in  pronouncing  the  judgment  of  the 


4  Bingham,  464.  45 

House  of  Lords,  in  the  case  of  an  appeal  from  Ii  eland,  The  Governor 
and  Company  of  the  Banic  of  Ireland  v.  Bcresford,  6  Dow.  ii33, 
seems  to  lay  down  the  follovving  position,  as  applicable  to  all  cases  of 
jjrincipal  and  surety  with  reference  to  the  subject  of  bail  only: 

His  Lordship  says,  "  With  respect  to  princi]ial  and  surety  in  a  bond, 
Avhere  the  creditor  enters  into  an  agreement  or  binding  contract  with 
the  principal  debtor  to  give  him  further  time,  without  the  concurrence 
of  the  surety,  the  surety  is  discharged,  as  the  creditor  by  his  new  con- 
tract destroys  the  benefit  which  the  surety  had  under  the  former  con- 
tract; as  he  thus  puts  it  out  of  his  own  power  to  make  good  his  engage- 
ment to  enforce  immediate  payment  from  the  principal,  which  the  surety 
would  have  had  a  right  to  require  him  to  do." 

So  here  the  surety  would  have  had  a  right  to  require  him,  the  tenant, 
to  prosecute  his  suit  speedily  and  without  dela}^;  but  the  landlord,  by 
his  agreement  with  the  tenant  and  staying  his  proceedings,  has  restrain- 
ed the  surely  from  compelling  him  so  to  proceed. 

I  have  said  that  the  cases  from  the  Exchequer  were  never  mentioned  to 
us  in  the  last  term.  I  presume  the  learned  counsel  were  not  on  either 
side  apprized  that  such  decisions  had  taken  place  on  the  very  point, 
otherwise,  doubtless,  our  attention  would  have  been  called  to  them.  But 
liaving  now  duly  considered  them  and  the  reasons  therein  contained, 
we  think  them  more  agreeable  to  the  condition  of  a  replevin  bond  than 
the  decisions  of  this  Court;  more  consonant  to  the  provisions  of  tlve 
statute  of  11  G.  2.  c.  19.  s.  23,  and  to  the  general  rules  respecting  prin- 
cipals and  sureties,  perhaps  originally  considered  in  courts  of  equity, 
but  now  adopted  and  acted  upon  in  courts  of  law.  We,  therefore,  think 
that  this  rule,  as  far  as  it  affects  the  sureties,  should  be  discharged,  and 
though  not  of  much  use,  it  may  be  absolute  against  the  tenant,  who  is 
stated  to  be  insolvent. 


As  against  the  sureties, 


Rule  discharged. 


M.\r;r;S,  Assignee  of  T.   HOWELL  and  J.  HOWELL,  iiankrupt.", 
V.  AMES. — p.   470. 

Assumpsit:  Meld,  that  a  pica  that  the  defendant's  undertaking  was  for  the  default 
of  another,  without  writing,  and  without  consideration,  niiglit  l)c  ple.idcd,  al- 
thougli  the  facts  might  have  been  given  in  evidence  under  tiie  general  issue. 

So,  a  plea  th;it  the  person  for  whom  the  defendant's  undcrlakinij  was  given, 
was  a  feme  covert. 

AssijMi'siT.  The  first  count  of  the  declaration  stated  that  Ann  Prickelt 
was  indebted  to  the  Howclls  before  they  became  bankrupt,  and  was  ar- 
rested at  their  suit;  that  thereupon,  in  consideration  that  tiie  Howells 
(before  their  bankruptcy)  wouhl  procure  the  discharge  of  Ann  l^ickett, 
and  take  her  bill  of  exchange  for  the  amount  of  the  debt,  the  defendant 
undertook  to  pay  the  amount  of  the  bill  of  exchange  in  case  it  should  be 
dishonoured  by  Ann  Prickett.  Averment  of  disiionour  by  Ann,  and 
nonpayment  by  defendant. 

The  second  count  was  upon  an  undertaking  to  pay  the  debt  lor  which 
Ann  Prickett  was  arrested,  in  consideration  of  Howell.s  procuring  her 
dischari£'\ 


46  Ma(.(.s  v.  Ames.  IJ.  T.  1828. 

The  clclciidanl  plciulcd,  fii-st,  tlic  general  issue:  the  lourlli  plea  wa>, 
that  the  supposed  ])roinises  and  undertakings  in  the  first  and  seeonci 
counts  res|)ectively  mentioned  were  special  promises,  and  each  ol'  theni 
was  a  special  promise  for  the  deht  of  another  person,  to  wit,  the  said 
Ann  Prickett;  and  that  no  agreement  in  respect  of  or  relating  to  the  said 
supposed  causes  of  action  in  the  said  first  and  second  counts  of  the  said 
declaration,  or  citiier  of  them,  nor  any  memorandum  or  note  thereof, 
wherein  tlie  consideration  or  considerations  for  the  said  special  promises 
or  either  of  tlicni  was  or  were  stated  or  shewn,  was  oris  in  writing,  or 
was  or  is  signed  hy  the  said  defendant,  or  by  any  other  person  by  him 
thereunto  lawfully  authorized. 

The  last  plea  was,  that  long  before  and  at  the  time  when  tlie  said  Ann 
Prickett  was  supposed  in  and  by  the  first  and  second  counts  of  the  said 
tieclaration  to  have  become  indebted  to  the  said  Thomas  Howell  and 
John  Howell,  and  from  thence  continually  until  the  making  of  the  said 
supposed  promises  and  undertakings  in  those  counts  respectively  stated, 
the  said  Ann  Prickett  was  the  wife  of  one  William  Prickett,  which  said 
William  Prickett  at  the  time  of  tlie  accrual  of  the  said  supposed  debt  to 
the  said  Thomas  Howell  and  John  Howell,  and  during  all  the  time 
aforesaid,  was  the  husband  of  the  said  Atm  Prickett  and  in  full  life. 

To  these  pleas  there  was  a  demurrer,  on  the  ground  that  they  amount- 
ed severally  to  tlie  general  issue,  and  tended  to  great  and  unnecessary 
prolixity  of  j)leading;  and  also  that  the  defendant  had  not  by  those  pleas 
or  either  of  them  traversed  or  denied,  or  attempted  to  put  in  issue,  any 
jiiatter  of  fact  alleged  b}'^  the  plaintifi' in  his  first  and  second  counts,  but 
had  in  each  of  the  pleas  respectively  introduced  and  attempted  to  put  in 
issue  matters  of  fact  not  alleged  nor  necessary  to  be  alleged.     Joinder. 

inide  SevjL  in  support  of  the  demurrer,  cited  Longi'idge  v.  Dorville,. 
5  B.  &  A.  117;  Bailey  v.  Croft, -1  Taunt.  611. 

Tatldt/  Serjt.  contra,  referred  to  Si/nndcrs  v.  JVakeJicld,  4  B.  &  A. 
596;  Jenkins  v.  Reynolds,  3  Brod.  &  Bingh.  14;  Ilussey  v.  Jacob,  Bac. 
Abr.  Pleas,  G.  3.  p.  372,  1  Ld.  Kaym.  87. 

Ctir.  adv.  vult. 

Park  J.  It  may  be  truly  said,  that  looking  through  all  the  law  books, 
there  is  not  a  greater  variety  of  opinions  upon  any  question  than  what 
j)leas  do  or  do  not  amount  to  the  general  issue,  nor  any  one  upon  which 
there  is  a  greater  mass  of  contradictory  decisions. 

I  shall  not  therefore  attempt,  though  I  have  looked  at  many  of  them, 
to  go  through  or  endeavour  to  reconcile  them;  I  satisfy  myself  in  gen- 
eral with  saying,  that  though  perhaps  the  general  issue  might  answer 
the  purpose,  it  does  not  therefore  necessarily  follow  that  the  demuner 
on  this  ground  must  be  allowed,  nor  that  the  defendant  was  bound  to 
give  this  matter  in  evidence  under  the  general  issue. 

There  are  many  instances  in  which  a  defendant  has  the  option  of  giv- 
ing his  defence  in  evidence,  or  of  putting  it  on  the  record. 

And  though  the  facts  alleged  luidcr  the  defendant's  special  plea  might 
have  been  given  in  evidence  under  tlie  general  issue^  the  ([uestion  i.s, 
whether  the  same  facts  stated  on  the  record  do  or  do  not  constitute  a 
good  plea. 

One  species  of  cases  in  which  this  may  be  done  is,  where  the  plain- 
tifl's  right  of  action  (which  is  confessed)  is  avoided  by  matter  ex  post 
factn,  as  by  payment;  which  m;iy  be  given  in  evidence  under  the  gen- 


4  Bingham,  470.  47 

eral   issue,  or  pleaded.     The  other  case  may  be,  where  tlie  plea  does 
not  deny  the  declaration,  but  answers  it  by  matter  of  law. 

The  plea  in  this  case  consists  not  in  denying  the  plaintiff's  right  of. 
action;  it  is  not  a  denial  of  the  facts  in  the  declaration,  but  it  is  matter 
of  defence  in  law  arising  out  of  the  statute  of  frauds.  I  think  the  whole 
of  this  doctrine,  as  to  what  pleas  shall  amount  to  the  general  issue,  has 
been  fully  and  admirably  explained  by  the  Judges  Bayley,  Holroydy 
and  Littledale,  in  the  case  of  Carrw.  Hinchcliffe,  4  B.  &  C.  547,  and 
which  was  not  quoted  to  us  in  this  case  at  the  baron  either  side. 

In  the  present  case  it  is  true,  that  as  it  appears  to  us  to  be  an  action 
brought  for  the  debt,  default,  or  miscarriage  of  another,  the  proof  must 
at  the  trial  have  been,  that  such  promise  was  in  writing,  but  still,  on  the 
face  of  the  declaration,  the  promise  was  good.  But  though,  on  the 
general  issue,  the  plaintiff  must  have  proved  the  writing,  the  defendant 
avoids  that  by  shewing  in  pleading  that  it  was  not  in  writing. 

The  same  observations  apply  to  the  fifth  plea,  the  coverture  of  Ann 
Prickett. 

The  question  then  is,  taking  the  declaration  and  plea  together,  does 
this  amount  to  an  undertaking  void  by  the  statute  of  frauds  ?  If  Ann 
Prickett  had  been  discharged  out  of  custody  upon  a  primary  and  absolute 
undertaking  that  the  defendant  would  pay  the  debt  at  all  events  or  accept 
a  bill  for  the  amount,  we  are  all  of  opinion  that  the  discharge  of  Ann 
Prickett  fiom  imprisonment  would  be  a  sufficient  consideration  for  such 
a  promise,  and  that  the  defendant  would  be  liable. 

But  the  undertaking  is,  merely,  that  if  the  plaintiffs  would  discharge 
Ann  Prickett,  they  should  take  her  acceptance  for  the  amount,  and 
that  he,  the  defendant,  (without  indorsing  or  becoming  in  any  way  party 
to  the  said  bill)  would  pay  the  same  in  case  the  same  should  be  dishon- 
oured by  the  said  Ann  Prickett.  This,  though  a  new  promise,  was  still 
only  collateral  on  the  part  of  defendant,  and  being  by  the  demurrer  to 
the  plea  admitted  not  to  be  in  writing,  the  Court  arc  of  opinion  that  the 
defendant  is  not  liable. 

Judsrmcnt  for  the  defendant. 


COSTELLO  V.   CORLETT.— p.  474. 

A  defendant,  who  has  been  holden  to  bail  in  an  excessive  sum,  can  only  recover 
his  costs  under  43  G.  3.  c.  46.  s.  8,  in  the  court  in  which  the  action  is  brought; 
where,  therefore,  the  action  was  brought  in  the  Palace  Court,  and  removed 
into  the  Clommon  Pleas,  the  Common  Pleas  refused  to  order  his  costs  to  hir 
taxed. 


STEPHENSON  v.  HART  and  WATERHOUSE.— p.  47fi. 

Plaintiff  having  been  imposed  upon  by  a  swindler,  consigned  a  box  at  Rirmingham 
by  the  defendants,  as  common  carriers,  to  J.  West,  27,  Great  Winchester 
Street,  London.  The  defendants  found  that  no  sucli  person  resided  there;  but 
upon  receiving  a  letter  signed  J.  West,  req\iesting  that  the  box  might  be  for- 
warded to  a  public  house  at  St.  Allian's,  they  delivered  it  there  to  a  person  call- 
ing himself  West,  who  shewed  that  he  had  a  knowledge  of  the  contents  of  the 
box:  that  person  having  disappeared,  and  the  box  having  been  originally  ob- 


48  Sir.iMKNSOx  V.  Haht.   TI.  'J\  1828. 

tained  of  ihe  plaintiirby  fraud,  Htld,  that  the  dcfemlaiitswere  liable  to  him  ii« 
an  action  of  trover.      Gaach-ci.  diaaemiejile. 
Held,  also,  that  it  was  ])ro])t.Tly   k-t"t  to  the  jury  to  say,  whether  the  defen- 
dants had  delix  ered  tiie  box  according  to  the  due  course  of  their  business  as 
carriers. 

Case  ngninst  the  defendants  r.s  carriers.  The  first  count  of  the  de- 
claration alleged,  that  the  defendants  had  received  from  the  plaintiff'  a 
box  containing  money,  goods,  and  chattels,  of  the  value  of  50/.,  to  be 
safely  carried  by  the  defendants  from  Birmingham  to  London,  and  there, 
"to  be  safely  deliveredyb?*  the  plaintiff,  for  certain  reasonable  reward 
to  the  defendants  in  that  behalf."  Yet  that  the  defendants,  not  regard- 
ing their  duty  in  that  beiialf,  did  not  deliver  the  box  and  its  contents  for 
the  plaintiff;  but  that  the  defendants  so  negligently  conducted  themselves 
in  the  premises,  that  through  their  negligence  and  default  the  box  with 
its  contents  were  lost  to  the  plaintifT. 

The  second  count  stated,  that  the  defendants  had  received  the  box  and 
its  contents  of  the  plaintiff  at  Birmingham,  to  be  safely  kept  by  the  de- 
fendants, and  upon  demand  to  be  redelivered  to  the  plaintiff.  Yet  the 
defendants,  not  regarding  their  duty  in  that  behalf,  did  not  safely  keep 
the  box  and  its  contents  for  the  plaintiff,  nor  redeliver  it  upon  his  de- 
manding it,  but  so  negligently  conducted  themselves  in  the  premises, 
that  through  their  negligence  and  default  the  box  and  its  contents  were 
lost  to  the  plaintiff. 

The  third  count  was  in  trover,  with  an  allegation  that  the  defendants 
had  converted  the  box  and  its  contents  to  their  own  use.    Plea,  not  guilty. 

At  the  trial  before  Lord  Tenterden  C.  J.,  at  the  last  Summer  assizes 
at  Warwick,  the  facts  were  as  follows: — 

On  the  27th  of  September  1826,  a  person  calling  himself  J.  West  ap- 
plied to  the  plaintiff,  a  comb  manufacturer  at  Birmingham,  for  a  parcel 
of  combs,  and  after  taking  a  certain  quantity  with  him,  ordered  30/. 
worth  to  he  forwarded  9S  early  as  possible,  addressed  to  J.  V/cst,  Esq., 
27,  Great  Winchester  Street,  London.  In  payment  he  gave  the  plaintiff 
a  bill  of  exchange  which  had  two  montlis  to  run,  purporting  to  be  drawn 
at  Edin!)urgh  for  50/.  by  Guerin,  upon  Le  Cointe  and  Co.,  merchants, 
Devonshire  Square,  London,  and  accepted  by  them,  payable  at  Smith, 
Payne,  and  Smith,  bankers,  London.  There  were  several  indorsements 
on  the  bill,  and  one  purporting  to  be  for  the  Royal  Bank  of  Scotland. 
The  plaintiff  agreed  to  discount  the  bill;  and  on  the  30th  September 
j)acked  up  the  combs,  and  the  change  supposed  to  be  due  to  West  (6/. 
105.),  in  a  box,  addressed  it  as  directed  by  West,  and  booked  it  for  Lon- 
don at  the  defendant's  office  in  Birmingham. 

The  box  arrived  the  next  day:  the  defendants,  upon  offering  to  deliv- 
er it  at  No.  27,  Great  Winchester  Street,  found,  not  only  that  no  such 
person  as  West  was  known  there,  but  that  the  house  had  not  been  tenant- 
ed for  a  twelvemonth.  About  a  week  or  ten  days  afterwards,  the  de- 
fendants received  a  letter  from  St.  Alban's  signed  J.  West,  informing 
them  that  a  box  for  him  had  been  addressed  by  mistake  to  Great  Win- 
chester Street,  and  requesting  them  to  forward  it  to  the  Pea  Hen,  a  pub- 
lic house  at  St.  Alban's.  The  defendants  f&rwarded  the  box  accordingly, 
when  a  person  calling  himself  West,  who  had  beensta3Mng  two  or  three 
days  at  the  Pea  Hen,  and  who  had  told  the  mistre.ss  of  the  house  that  be 
could  not  pny  her  bill   till  a  box  arrived  in  which  he  expected  money, 


4  Bingham, 476.  49 

said  on  its  c'inival,  "  That  is  the  box  I  expected;  it  contains  money ;■'  and 
proceeding  to  open  it,  took  out  money  and  paid  his  bill.  He  shortly 
afterwards  disappeared. 

The  bill  of  exchange  given  by  West  to  the  plaintiff  having  been  pre- 
sented for  payment  when  it  became  due  in  December,  it  was  found  that 
there  was  no  such  firm  as  Le  Cointe  and  Co.  in  Devonshire  Square,  and 
that  no  such  persons  had  ever  kept  cash  with  Smith,  Payne,  and 
Smith. («)  Application  for  the  box]on  behalf  of  the  plaintiff  was  then  made 
at  the  defendant's  office  in  London.  They  first  asserted  that  the  box  had 
been  returned  to  Birmingham,  but  afterwards  produced  the  letter  sign- 
ed by  West,  and  said,  that  on  receiving  it  they  had  delivered  the  box  at 
St.  Alban's  as  before  stated. 

Lord  Tenterdoi,  who  in  the  course  of  the  trial  had  observed,  that  it 
was  for  the  jury  to  say  from  the  whole  transaction,  whether  it  was  not 
a  mere  act  of  swindling,  upon  summing  up  said,  that  the  question  for 
them  to  consider  was,  whether  the  defendants  had  delivered  the  box  ac- 
cording to  the  due  course  of  their  business  and  duty  as  carriers  ? 

The  jury  having  found  a  verdict  for  the  plaintiff,  damages  37/.  17^.  Gd.y 

Jldams  Serjt.  in  the  last  term  moved  for  a  new  trial,  on  the  ground 
that  the  jury  ought  to  have  been  directed  to  consioer  whether  or  not  the 
box  had  been  delivered  to  the  person  to  whom  it  was  consigned.  He 
also  objected,  that  there  was  no  evidence  to  support  the  allegation  in 
the  first  count  of  the  declaration,  that  the  box  was  to  be  delivered ybr 
the  plaintiff,  and  by  the  common  law  it  was  to  be  delivered  for  and  to 
West,  the  consignee;  that  there  was  no  evidence  to  support  the  allega- 
tion in  the  second  count,  that  it  was  to  be  redelivered  to  the  plaintiff; 
and  that  he  could  not  support  the  count  in  trover,  inasmuch  as  upon  the 
delivery  to  the  carriers  the  property  in  the  box  ceased  to  be  in  him,  and 
was  vested  in  the  consignee. 

A  rule  iiisi  having  been  granted, 

Z?05an<7«e/ Scijt.  shewed  cause,  and  cited  Duff  v.  Budd,  3B.  &B. 
177. 

Wilde  and  Adams  Scrjis.  contra,  referred  to  Nohle  v.  Adams^  7 
Taunt.  5.9. 

The  Court  desired  to  hear  Boaavrpicl  on  the  applicabilify  of  the  count 
in  trover,  thinking  tlie  evidence  did  not  support  the  two  first  counts  of 
the  declaration.  He  referred  to  Nuhle  v.  ./Jdcnns,  Rex  v.  Jac/cson,  3 
Campl).  370;  Earlnf  Brislol  v.  H'ils7norc,  1  B.  &  C.  514;  nud  /Jitffv. 
Buddy  to  shew  that  where  goofis  arc  obtained  l)y  fraud,  the  property 
in  them  does  not  pass  out  of  the  vendor,  who  may,  therefore,  mamtain 
trover;  and  2  Salk.  C>5r)-  Perkins  v.  Smith,  I  Wils.  S2S;  Voul  v.  Har- 
holtlc,  Peake,  N.  P.  C.  fiS;  Devcrcux  v.  Barchiy,  2  B.  &  A.  702;  and 
Stephens  v.  FAwall,  4  M.  &  S.  259,  to  shew  that  delivery  i)y  a  bailee 
to  a  wrong  person  anioiinfcd  (o  a  conversion;  Boss  v.  Johnson,  5  Burr. 
2825,  being  distingnLsiialjIe  as  a  case  of  mere  omission  on  the  part  of 
the  carrier. 

Pahk  J.  I  rather  incline  to  tliink  that  the  special  counts  in  this  de- 
claration arc  not  borne  out  by  the  evidence  in  the  cause;  but  I  consider 
the  action  to  be  maintainable  upon  the  count  in  trover. 

{(i)  The  iiulnrscment  of  the  Rank  of  Scotland  was  also  founrl  to  he  a  forgery; 
but  no  evidence  was  given  of  this  at  the  trial,  on  account  of  the  cxpcnce  of  prov- 
ing it  by  a  witness  from  Scotland. 

VOL.  XV.  7 


^0  Stephenson  v.  Hart.  H.  T.  1828. 

From  the  cases  which  have  been  cited  it  is  clear  that  trover  lies  against 
a  carrier  for  misfeasance  in  delivering  a  parcel  to  a  wrong  person.  In 
Ifoss  V.  Johnson  a  distinction  was  taken  between  misfeasance  and  non- 
feasance, and  it  was  liolden  that  trover  would  not  lie  where  a  carrier  had 
lost  goods  by  a  robbery  or  theft.  Lord  Afansjieldnni]  t,Qslo7iS .  considering 
that  a  case  of  mere  omission.  But  in  Youl  v.  Harbottle,  J^ord  KenyoUy 
referring  to  lioss  w.  Johnson,  said,  that  where  the  carrier  was  actor,  and 
delivered  the  goods  to  a  wrong  person,  he  was  liable  in  trover.  Jlhbott 
C.  J.,  in  Devcreux  v.  Barclay,  took  the  same  distinction  between  omis- 
sion and  commission,  and  held  the  defendant  liable  for  having  done  an 
act  which  he  ought  not.      Dayhy  J.  referred  to  Youl  v.  Harbottle. 

The  question  therefore,  on  the  present  occasion,  is,  whether  the  de- 
fendant has  been  guilty  of  a  wrongful  delivery  for  which  trover  lies? 
The  plaintifl' had  sold  goods  to  a  felon  (for  I  will  not  call  him  a  swind- 
ler), who  tendered  a  mere  fictitious  bill  in  payment.  Upon  such  a  trans- 
action the  question  is,  not  what  the  seller  means  to  do,  but  what  are  the 
intentions  of  the  customer.  Did  he  mean  to  buy  in  the  present  case? 
Never:  he  went  with  an  intention  to  commit  a  felony.  Aickhs's  case, 
1  Leach,  294;  2  East,  P,  C.  c.  16-.  s.  106.  p.  675,  turned  on  that  dis- 
tinction. But  the  point  was  under  the  consideration  of  all  the  Judges 
this  term,  in  the  case  ol  James  Campbell,  who  went  to  the  shop  of  one 
Berens  and  proposed  to  buy  fancy  articles:  Berens  agreed  to  sell,  and 
was  to  deliver  them  at  Lad  Lane  to  Campbell  the  same  evening.  When 
lie  came  to  Lad  Lane,  Campbell  said  he  expected  a  friend  with  money 
who  had  not  arrived,  and,  opening  a  twopenny  post  letter  which  he  pre- 
tended to  have  just  received,  added,  "My  friend  will  give  me  200/.  at 
Tom's  Coffee  House:  leave  the  box,  and  meet  me  at  Tom's  in  an  hour. " 
As  soon  as  Berens  was  out  of  sight,  Campbell  went  off  with  the  box,  and 
was  heard  of  no  more  till  his  apprehension  some  days  afterwards.  The 
learned  Common  Serjeant  left  it  to  the  jury  to  say,  not  what  was  the  in- 
tention of  Berens,  but  whether  Campbell  intended  to  buy  the  goods  or 
to  steal  them.  The  jury  having  found  him  guilty  of  felony,  the  point 
was  reserved  for  the  judges,  who  held  that  the  property  in  the  goods  ne- 
ver passed  out  of  Berens. 

It  is  clear  that  in  the  present  case  the  person  calling  himself  West  ne- 
ver meant  to  pay  for  the  goods,  and  the  question  of  fraud  was  sufficient- 
ly left  to  the  jury  by  the  Chief  Justice's  saying  in  the  course  of  the  trial 
that  the  whole  appeared  to  be  a  swindling  transaction.  Then,  on  sum- 
ming up,  he  left  it  to  tiic  jury  to  say  whether  the  defendants  had  deliv- 
ered the  box  according  to  the  course  of  their  business  and  duty. 

It  is  manifest  that  they  had  not.  The  property  in  the  box  was  never  out 
of  the  plaintiff;  and  it  is  plain  the  defendant  thought  so;  for  upon  their 
failing  to  find  any  person  in  Great  Winchester  Street  to  whom  it  belong- 
ed, and  upon  enquiry  being  made  what  they  had  done  with  it,  they  af- 
firmed that  they  had  sent  it  back;  and  when  the  falsehood  of  this 
was  discovered,  asserted  that  they  had,  at  all  events,  delivered  it 
to  the  right  person.  A  felon  could  not  be  the  right  person.  But  were 
carriers,  of  their  own  authority,  without  consulting  the  consignor,  to 
send  to  an  inn  at  St.  Alban's  a  box  addressed  to  Great  Winchester  Street, 
London?  If  they  had  made  enquiry  at  Birmingham,  whence  the  box 
arrived,  there  could  have  been  no  difficulty  in  discovering  who  was  the 


4  Bingham,  476.  51 

consignor.  But  without  enquiry,  and  notwithstanding  the  warning  that 
was  given  by  the  circumstance  that  West  had  never  been  heard  of  at  the 
place  to  which  the  box  was  addressed,  they  forward  it  to  an  unknown 
person  at  an  inn,  upon  the  faith  of  a  letter  of  which  they  did  not  know  the 
writer.  I  cannot  distinguish  this  case  from  Buff  v.  Budd.  There  the 
plaintiffs  having  received  an  order  from  a  stranger  to  furnish  goods  for 
J.  Parker,  of  High  Street,  Oxford,  and  finding  upon  enquiry  that  Mr. 
Parker  of  the  High  Street  was  a  ti-adesman  of  respectability,  forwarded 
the  goods  by  a  carrier,  having  directed  them  to  J.  Parker,  High  Street, 
Oxford.  On  the  arrival  of  the  parcel  at  Oxford,  the  carrier's  porter  there, 
who  knew  W.  Parker  of  the  High  Street  (and  who  was  accustomed  to 
deliver  parcels  at  the  houses  of  the  consignees),  told  him  of  the  arrival  of 
the  parcel,  no  other  Parker  residing  in  that  street.  W.  P.  said  he  ex- 
pected no  parcel.  A  person  to  whom  the  porter  had  before  delivered 
parcels  under  the  name  of  Parker,  called  at  the  defendant's  office  shortly 
afterwards,  and  saying  the  parcel  was  his,  was  allowed  to  take  it  on  pay- 
ing the  carriage,  there  being  many  persons  of  that  name  in  Oxford.  The 
plaintiffs  having  lost  their  goods,  desired  the  defendant,  by  letter,  to  ap- 
prehend the  person  wiio  had  taken  them,  if  he  again  presented  himself, 
and  afterwards  said  that  the}^  had  done  with  the  defendant  if  the  man 
who  had  the  parcel  were  produced.  A  notice  was  suspended  in  a  con- 
spicuous part  of  defendant's  office,  limiting  his  responsibility  to  5/.,  ex- 
cept where  articles  were  entered  according  to  their  value;  and  the  parcel 
in  question  had  not  been  so  entered,  though  worth  89/. 

The  plaintiffs  having  sued  the  carrier,  and  the  Judge  having  directed 
the  jury  that  the  carrier's  negligence  had  been  such  as  to  render  it  unne- 
cessary to  consider  the  question  as  to  the  notice  touching  the  limited  re- 
sponsibility, and  a  verdict  having  been  found  for  the  ])laintiffs,  the  Court 
refused  to  grant  a  new  trial,  which  was  moved  for,  on  the  ground  that 
the  question  touching  the  notice  ought  to  have  been  considered;  that  the 
Judge  ought  to  have  pointed  the  attention  of  the  jury  to  the  plaintiffs' 
letter,  directing  the  carrier  to  apprehend  the  cheat,  and  the  subsequent 
conversations  thereon;  and  that  the  property  of  the  goods  had  passed  out 
of  the  plaintiffs. 

That  was  a  much  harder  case  against  the  carrier  than  the  present,  be- 
cause the  person  who  came  to  the  office  had  often  been  there  before;  but 
it  was  never  doubted  that  the  property  in  tiie  parcel  remained  in  the  con- 
signor, and  I  rely  particularly  on  the  language  of  liic/uirdson  J.,  who 
says,  "There  was  clearly  a  property  in  the  plaintiffs  entitling  them  to  sue, 
as  they  had  been  imposed  upon  by  a  gross  fraud." 

The  argument  which  has  lieen  raised  for  the  defendants,  by  the  asser- 
tion that  the  box  has  been  delivered  to  the  right  person,  is  answered  by 
saying,  that  a  felon  cannot  be  the  right  person,  and  as  to  the  defendants' 
liability  to  an  action  at  the  suit  of  West,  till  it  was  ascertained  that  the 
hill  he  had  given  would  not  be  honoured,  such  an  action  might  have  been 
well  defended  i)y  shewing  that  the  box  was  tendered  at  (ircat  Winchester 
Street,  and  that  no  such  person  was  known  there.  I  am,  therefore,  clear- 
ly of  opinion  that  the  rule  which  has  been  obtained  on  the  part  of  the  de- 
fendants must  be  discharged. 

HiiKKOnf;ii  J.  I  am  of  opinion  that  the  verdict  is  rigiit,  tlint  there  Is 
no  ground  for  a  new  trial,  and  that  the  action  is  maintainable  on  the  se- 
cond count  uf  this  declaralioM,     At  the  outset  no  doubt  the  contract  was 


.''2  Stephenson  v.  Hart.  H.  T.  1828. 

bctwoon  the  rarrier  ami  the  consi^fiico;  but  when  it  was  discovered  that 
no  siu'h  person  as  the  consignee  was  to  be  found  in  Great  Winchester 
Street,  that  contract  was  at  an  end,  and  the  goods  remaining  in  the  hands 
of  the  carriers  as  the  goods  of  the  consignor,  a  new  implied  contract 
arose  between  the  carrier  and  the  consignor,  to  take  care  of  the  goods 
for  the  use  of  the  consignor.  It  is  clear  that  the  properly  in  them  never 
passed  out  of  the  (Jainlilf,  the  consignor.  Tlie  wiiole  transaction  was  a 
gross  fraud, — the  goods  procured  by  a  bill  with  a  false  drawer  and  false 
acceptor,  and  no  sucli  person  as  the  consignee  over  heard  of  at  the  place 
to  wliich  he  had  addrcssetl  the  goods.  That  circumstance  ought  to  have 
awakened  the  suspicions  of  the  defendants,  and  they  were  guilty  of  gross 
negligence  in  parting  with  them  without  further  enquiry.  In  the  result, 
they  have  the  goods  of  the  plaintiff  in  their  possession,  and  they  are 
liable  to  him  if  they  deliver  them  wrongfully. 

Gasei-ee  J.  I  am  of  opinion  that  the  defendants  conducted  them- 
selves with  gross  negligence.  When  they  found  that  the  consignee  was 
not  to  be  heard  of  in  Great  Winchester  Street,  it  was  their  duty  to  have 
inade  enquiry  whether  the  statement  in  the  letter  from  St.  Alban's  was 
true;  and  if  they  had  investigated  the  conduct  of  West,  the  fraud  would 
have  been  discovered:  but  I  doubt  whether  the  action  can  be  maintained 
upon  a  declaration  framed  like  the  present.  On  the  second  count  it  ap- 
pears as  if  a  contract  had  been  made  between  the  consignor  and  the  car- 
rier. Now,  from  Dawes  v.  Peck,  8  T.  R.  330,  it  is  clear  that  where 
goods  are  despatched  by  a  carrier,  the  contract  for  payment  of  the  car- 
riage is  between  him  and  the  consignee,  even  though  the  goods  should 
liave  been  booked  by  the  consignor;  and  though  the  property  in  these 
goods  turned  out  afterwards  to  be  in  the  consignor,  yet  that  did  not  ap- 
pear at  the  time  of  the  contract.  Then  can  the  action  be  maintained  in 
trover?  There  can  be  no  doubt  that  this  was  a  swindling  transaction,  and 
I  incline  to  think  that  the  question  of  fraud  was  sufficiently  left  to  the  jury 
by  what  fell  from  the  learned  Chief  Justice  in  the  course  of  the  trial. 
33ut  taking  that  to  be  so,  my  doubt  is,  whether,  the  goods  having  been 
delivered  to  the  person,  who  up  to  the  time  the  bill  drawn  by  Le  Cointe 
became  payable,  was  the  person  apparently  entitled  to  them,  the  defend- 
ants are  liable  in  trover  for  such  delivery,  as  having  been  guilty  of  a 
wrongful  conversion  of  the  goods.  For  delivery  to  a  wrong  person,  a 
carrier  is  no  doubt  responsible  in  trover,  but  from  all  that  appears  in  this 
case,  it  may  be  collected  that  the  person  who  received  the  box  at  St. 
Alban's  was  the  person  calling  himself  West,  and  the  person  to  whom  it 
was  intended  the  box  should  be  delivered.  However,  Lord  Tenterden 
having  left  it  properly  to  the  jury  to  say  whether  the  box  was  delivered 
in  the  due  course  of  the  defendants'  business,  a  nevv  trial  could  not  be 
granted  except  upon  payment  of  costs;  the  plaintiff,  too,  would  amend, 
and  probably  recover  upon  the  second  trial,  so  that  justice  appears  upon 
the  whole  to  have  been  done;  and  my  two  learned  brothers  entertaining 
a  different  opinion  on  the  subject  of  the  declaration,  the  rule  must  be 

Discharged, 


4  Bingham,  489.  53 

(IN  THE  EXCHEQUER  CHAMBER.) 

GOLDSTEIN  v.  FOSS  and  Another.— p.  4S9. 

Libel.  The  declaration  alleged,  that  whereas  divers  pei-sonshad  boon  assi)ciatcd 
together,  under  the  name  of  "The  Society  of  Guaixiians  for  the  Protection  of 
Trade  against  Swindlers  and  Sharpers,"  and  the  defendant  under  ])retence  of 
being  secretary  of  the  society,  had  from  time  to  time  published  primed  reports 
for  tlie  purpose  of  announcing  to  the  society  the  names  of  sucli  persons  as  wei-e 
deemed  swindlers  and  sharpers,  and  improper  persons  to  be  proposed  as  mem- 
bers of  the  society;  and  whereas  the  plaintift"  was  a  merchant  of  good  character, 
yet  the  defendant  falsely  and  maliciously  published  of  and  concerning  the 
plaintiff,  in  his  trade  and  business,  the  following  libel: — 

"Society  of  Guardians  for  the  Protection  of  Trade  against  Swindlers  and 
Sharpers.  I,  E.  F.,am  directed  to  inform  you,  that  the  persons  using  the  firm  . 
of  Goldstein  (meaning  the  plaintiff)  are  reported  to  the  society  as  im])roper  to  be 
proposed  to  be  balloted  for  as  members  thereof;"  thereby  meaning  that  the 
plaintiff  was  a  swindler  and  a  sharper,  and  an  improper  person  to  be  a  member 
of  the  said  society: 

Held,  that  the  innuendo  could  not  be  supported  withoit  a  previous  averment, 
that  it  was  the  custom  of  the  society  to  designate  swindlers  and  shar])ers  by 
the  terms,  imjirofier  persons  to  be  members  of  that  society,  and  that  it  did  not 
appear  tliat  the  society  described  in  the  libel  was  the  society  described  in  the 
introductory  part  of  the  declaration. 

Error.  The  plahitiff  declared,  that  whereas  he  was  a  merchant  of 
good  character,  and  whereas,  before  the  committing  of  the  grievances 
complained  of,  divers  persons  had  been  associated  together,  under  the 
name  and  description  of  "The  Society  of  Guardians  for  the  protection 
of  Trade  against  Swindlers  and  Sharpers;"  and  tiie  defendant  P^oss,  un- 
der colour  and  pretence  of  being  the  secretary  of  the  said  society,  had 
from  time  to  time  published,  and  was  accustomed  to  publish,  certain 
printed  reports,  for  tiie  purpose  of  announcing  and  signifying  to 
the  members  of  the  said  society  the  names  of  such  persons  as  were  deem- 
ed swindlers  and  sharpers,  and  improper  persons  to  be  proposed  to  be 
balloted  for  as  members  of  the  said  society, 

Vet  the  defendants,  knowing  the  premises,  but  greatly  envying  the 
liappy  state  of  the  plaintiff,  falsely  and  maliciously  did  compose,  print, 
and  publish  the  following  false,  scandalous,  malicious,  and  (h^fiunatory 
libel  of  and  concerning  the  plaintill'  in  the  way  of  his  trade  and  business. 
— "Society  of  Guar^lians  for  the  protection  of  Trade  against  Swindlers 
and  Sharpers. — I,  Edward  Foss,  am  directed  to  inform  you,  that  the 
persons  undernamed,  or  using  the  firm  of  Goldstein,"  (meaning  the  plain- 
tiff) "Castle,  and  Co.  51.  Mark  ]^ane,  and  lienjamin  Porter,  baker, 
Il.ickney  Road,  are  reported  to  the  society  as  improjier  to  be  proposed 
to  be  balloted  for  as  members  thereof;"  thort-by  IIkmi  and  there  meaning 
tbat  the  said  plaiiitifl'  was  a  swindler  and  a  sharper,  and  an  improper  per- 
son to  be  a  membra- of  said  society. 

There  were  other  counts,  varying  the  innuendos,  but  without  the  in- 
troductory matter  as  to  the  Guardiati  society.      Plea,  not  guilty. 

At  the  Middlesex  sittings  after  Hilary  term  1S2G,  a  verdict  was  found 
for  the  plaintiff,  damages  150/.;  but  judgment  having  been  arrested  in 
the  Court  of  King's  Bench,  on  the  ground  tbat  the  innuendo  was  not  war- 
ranted by  the  libel,  and  that  the  society  mentioned  in  the  libel  was  not 


54  Goldstein  v.  Foss.  H.  T.  1828. 

averred  to  be  the  same  society  as  that  mentioned  in  the  introductory 
matter,  6  B.  S:  C.  151,  the  present  writ  of  error  was  brouglit. 

JF'.  Pollock,  for  the  plaintiff,  contended,  that  the  name  of  the  society, 
mentioned  in  the  introductory  part  of  the  declaration,  being  the  same  as 
that  mentioned  in  the  libel,  and  it  no  where  appearing  that  there  were 
two  societies  of  that  name,  the  society  mentioned  in  the  libel  was  sulli- 
cicntly  connected  with  that  mentioned  in  the  introductory  part  of  the 
tleciaration;  if  so,  the  innuendo  attached  to  the  libel  was  sufliciently  war- 
ranted by  the  preliminary  allegation,  that  it  was  the  practice  of  the  de- 
fendant, as  secretary  of  the  society,  to  publish  reports,  specifying  the 
names  of  persons  who  were  swindlers,  and  improper  persons  to  become 
membersof  the  society.  But,  inasmuch  as  a  libel  might  be  conveyed  in 
any  terms,  however  innocent  in  themselves,  provided  the  parties  employ- 
ing them  were  agreed  to  take  them  in  the  libellous  sense,  if  a  jury  found 
that  thcscnse  intended  were  correctly  conveyed  by  the  innuendo,  any  de- 
fect of  introductory  allegation  would  be  cured  by  verdictj  Coles  v. 
Havdand,  Cro.  Eliz.  250.     1  Wms.  Saund.   227.  n.  1. 

Campbell,  contra,  cited  1  Wms.  Saund.  243.  n.  4.  Holt  v.  Scholc- 
field,  6  T.  R.  691,  per  Lawrence  J.  in  Hawkes  v.  Hawkey,  8  East, 
427.  Barhani's  case,  4  Rep.  20  a. 

Best  C.  J.  The  Court  does  not  entertain  the  smallest  doubt, "and  the 
judgment  below  must  be  affirmed.  It  has  been  urged,  that  if  that  judg- 
ment be  supported  there  will  be  no  means  of  obtaining  justice  against 
the  society.  It  would  not  be  difficult,  however,  so  to  put  a  case  on  the 
record  against  the  secretary,  if  he  makes  a  false  report,  as  to  try  the 
merits  of  the  proeeeding;  but  on  the  present  record  there  are  not  facts 
enough  to  shew,  that  the  construction  put  upon  the  libellous  words  by 
the  innuendo  is  the  sense  in  which  they  were  employed  by  the  defendant. 
The  words  do  not  naturally  import  that  the  plaintiff  is  a  swindler;  and 
we  want  an  allegation  of  fact  to  prove  that  they  were  used  in  that  sense. 
A  man  might  be  improper  to  be  a  member  of  that  society  if  he  were  old 
or  infirm,  or  had  not  a  sufficient  knowledge  of  the  resorts  of  swindlers. 
If  the  declaration  had  gone  on  to  aver  that  it  was  the  custom  of  the  society 
to  designate  swindlers  by  the  term  i/fip7'oper persons  the  innuendo  might 
have  been  sufficient.  But  an  innuendo  cannot  add  a  fact  or  enlarge  the 
natural  meaning  of  words.  And  looking  at  these  words,  without  the 
allegation  of  that  fact,  no  one  would  know  that  the  plaintiff  was  a 
swindler,  because  he  was  not  a  pi'oper  person  for  the  Guardian  Society. 
The  plain  ground  of  our  judgment  is,  that  we  cannot  see,  on  this  record, 
that  the  plaintifT  was  charged  with  having  been  a  sharper  or  swindler; 
and  this  is  a  defect  which  the  verdict  does  not  cure,  the  question  turning 
on  the  construction  of  words  which  are  not  adequately  shewn  to  bear  any 
other  than  their  natural  meaning.  If  a  verdict  were  to  cure  defects  of 
this  nature,  it  would  deprive  parties  of  the  valuable  privilege  of  an  ap- 
peal to  a  court  of  error,  though  Mr.  Fox's  bill  expressly  reserves  the  li- 
berty of  moving  in  arrest  of  judgment. 

Judgment  affirmed. 


HANSON  v.  ROBERT  and  SAMUEL  BLAKEY.— p.  493. 

A  bankrupt  obtained  liis  certificate  on  the  13th  of  November;  the  same  day  a 
Jicri  facias  was  executed  on  his  goods  :  the  Court  refused  relief  on  motion. 


4  BrNGHAM,  496.  55 


HEYVVOOD  and  Others  v.  T.  W.  WATSON.— p.  496. 

Defendant  and  M.,  partners,  having  obtained  leave  to  overdraw  their  bankers, 
the  plaintiffs,  M.  gave  them  a  promissory  note  for  2C00/.,  as  a  security  for  ad- 
vances, and  defendant  thereupon  gave  M.  a  note  for  1000/.,  payable  to  order. 
Plaintiffs  advanced  1300/.  to  M.  and  defendant,  and  two  years  after,  being  in  pos- 
session of  defendant's  note  for  1000/.  by  transfer  from  M.,  sued  defendant.  It 
did  not  appear  that  they  had  given  M.  any  consideration  for  it,  or  that  they 
had  notice  of  the  circumstances  under  which  defendant  gave  it  to  M. : 

Held,  they  were  entitled  to  recover. 

Assumpsit.  The  declaration  contained  counts  on  the  promissory 
note  for  1000/.,  set  out  below,  together  with  the  usual  money  counts. 
At  the  trial  at  the  Lent  assizes  1827,  for  the  county  of  Lancaster,  before 
Hullock  B.,  a  verdict  was  found  for  the  plaintiffs  for  the  sum  of  1000/. 
on  the  counts  upon  the  note,  subject  to  the  opinion  of  the  Court  upon  the 
following  case:^ 

The  plaintiffs  were  bankers  at  Liverpool,  the  defendant  was  a  mer- 
chant there.  In  the  year  1815  the  defendant  entered  into  partnership 
with  Cyrus  Morrall,  the  payee  of  the  promissory  note,  on  which  this 
action  was  brought,  under  the  firm  of  Morrall  and  Watson.  On  the  9th 
of  February  1S24,  the  said  partnership  obtained  from  the  plaintiffs,  who 
were  their  bankers,  permission  to  overdraw  their  banking  account  with 
the  plaintiffs,  and  Morrall  gave  to  the  plaintiffs  as  collateral  security  for 
the  said  advances,  his  separate  promissory  note  for  2000/.,  which  was  as 
follows:  <' Liverpool,  9th  February  1824.  On  demand  I  promise  to  pay 
to  Arthur  Hey  wood,  Esq.,  Sons,  and  Co.  (the  plaintiffs),  or  order,  2000/., 
value  received.  Cyrus  Morrall."  On  the  lOlh  February  1824  the  de- 
fendant, for  the  purpose  hereinafter  mentioned,  drew  the  promissory 
note  on  which  this  action  was  brought,  which  is  as  follows:  "On  demand 
I  promise  to  pay  Cyrus  INIorrali,  or  order,  1000/.,  value  received.  Tliomas 
Wright  Watson."  Endorsed,  Cyrus  Morrall.  No  evidence  was  given 
of  express  notice  to,  or  express  knowledge  by,  the  ph\intiffs  of  the  pur- 
pose for  which  this  note  was  drawn,  or  of  the  letter  dated  lOtli  day  of 
February  hereinafter  mentioned.  On  the  said  10th  February  1S24,  the 
defendant  sent  the  last  mentioned  promissory  note  to  Morrall,  enclosed 
in  a  letter  addressed  to  Morrall,  in  which  the  defendant  stated  that  he  de- 
posited with  him,  Morrall,  the  note  in  question  to  meet  his,  Morrall's, 
collateral  security  given  in  the  said  note  lor  2000/.  to  ibe  plaiiitills  for  the 
said  advances,  and  to  secure  to  Morrall  repayment  of  his,  thedcrfiulant'.s 
moiety  of  that  sum  or  of  such  sum  as  Morrall  individually  should  have 
to  pay  the  plaintifls  on  the  joint  account  of  him.'^elf  (Morrall)  and  the  de- 
fendant. The  partnership  of  Morrall  and  Watson  terminated  on  the  2Sth 
February  1825. 

The  plaintiffs  proved  that  they  were  possessed  Ijcfore  June  1820  of  the 
defendant's  note  indorsed  by  Morrall  to  them,  but  it  did  not  appear  how 
much  sooner  they  were  so  possessed,  or  when  it  was  so  indorsed  by  Mor- 
rall. No  consideration  for  such  indorsement  was  proved,  nor  any  a[)plica- 
tion  to  Morrall  previous  to  such  indorsement  for  payment  of  his  said  note 
for  2000/.  nor  for  the  payment  of  the  said  advances.  Neither  the  said  last 
mentioned  note,  nor  the  said  advances,  nor  any  part  thereof,  have  been 
paid  by  Morrall,  but  the  same  note  remains  unsatisfied  in  the  plaintiffs' 


56  IIkvwoou  v.  Watson.  H.  T.  1828. 

Iininls.  The  plainlilVs  havo  not  maile  any  advances  on  account  of  the 
parttiershi])  of  JNIonall  and  Watson  since  the  termination  of  the  partner- 
sljip,  and  luMlher  Morrall  nor  the  defendant  was,  at  the  time  when  the 
note  came  into  thcphiintiUs'  possession,  indebted  to  the  plaintiffs,  nor  has 
eillier  of  them  since  become  indebted  to  the  plaintiffs  on  his  separate  ac- 
count, uidess  the  court  should  be  of  opinion  that  the  defendant,  as  maker 
of  the  said  note,  was,  under  the  circumstances  of  this  case,  indebted  to 
tlie  plaintiffs  as  payees  tiiereof.  The  plaintiffs  were  Morrall's  bankers. 
The  said  advances  amounted  to  1300/.,  which  was  still  unpaid.  They 
were  made  to  the  partnership  of  Morrall  and  Watson,  or  on  their  account 
jointly,  and  not  to  Morrall,  or  on  his  account  separately,  and  were  so 
debited  in  the  plaintitis'  books. 

The  question  for  the  opinion  of  the  Court  was,  whether  the  plaintiffs 
were  entitled  to  recover  the  said  sum  of  1000/.,  or  any  part  thereof,  on 
the  said  counts  on  the  note,  or  not.  If  the  Court  should  be  of  opinion 
that  they  were  so  entitled,  the  verdict  was  to  stand;  but  if  the  Court  were 
of  opinion  that  they  were  not  so  entitled,  a  nonsuit  was  to  be  entered. 

Russell  Serjt.  was  to  have  argued  the  case  for  the  plaintiffs,  but  the 
Court  called  on 

inide  Serjt.  for  the  defendant. 

Best  C.  J.  I  think  there  was  abundant  consideration  for  the  present 
action.  Tiie  plaintiffs  are  bankers,  whose  consent  the  defendant  and 
Morrall  had  obtained  to  overdraw  their  accounts,  which  they  did,  to 
the  extent  of  1300/.;  but  the  plaintiffs  required  from  Morrall  his  note 
fur  2000/.  as  a  security;  he  gave  it  them,  and  the  defendant  thereupon 
gave  to  Morrall  his  note  for  1000/.,  being  half  of  the  liability  incurred, 
and  this  note  Morrall  pays  into  his  bankers,  the  plaintiffs.  It  has  been 
urged  that  he  only  deposited,  and  did  not  pay  it.  If  that  had  been  so, 
the  effect  might  have  been  different;  but  no  such  fact  appears,  and  it  is 
immaterial  whether  Morrall  could  have  sued  the  defendant  or  not.  If 
ihere  was  a  good  consideration  as  between  Morrall  and  the  plaintiffs, 
and  the  plaintiffs,  as  it  is  alleged,  were  ignorant  of  the  circumstances 
under  which  Morrall  took  the  note,  they  are  entitled  to  recover.  If 
the  plaintiffs  knew  those  circumstances,  the  defendant  should  have  shewn 
that;  but  in  the  absence  of  any  such  proof,  it  must  be  taken  that  the 
plaintiffs  received  the  note  in  ignorance  of  those  circumstances.  Even 
if  they  had  known  them,  I  am  of  opinion  they  might  have  sued.  Mor- 
rall says  to  them,  "I  have  received  this  note  as  a  security  for  myself, 
and  I  transfer  it  as  an  additional  security  to  you."  As  they  had  aright 
to  sue  Morrall  on  the  2000/.  note,  they  had  equally  a  right  to  sue  the 
defendant  for  the  1000/.;  Morrall  thus  giving  them  the  opportunity. 
The  effect  no  doubt  is,  that  the  defendant  is  at  first  called  on  to  pay 
more  than  half  of  the  1300/.  advanced  to  him  and  Morrall;  but  he  may 
call  on  Morrall  to  pay  back  his  proportion. 

Park  J.  On  the  face  of  these  proceedings  I  see  no  difficulty.  The 
action  is  brought  on  a  note  payable  to  order,  and  indorsed  to  the  plaintiffs, 
who  have  a  clear  right  to  sue.  It  has  been  urged,  that  they  should  have 
enquired  into  the  circumstances  attending  the  making  of  the  note:  but 
they  had  no  notice  of  those  circumstances,  nor  any  ground  of  sus|  i  ;ion 
to  put  them  on  enquiry ;  for  though  the  note  was  made  in  1824,  it  wcs 
payable  on  demand,  and  therefore  could  not  be  esteemed  overdue  till  de- 
mand had  been  made.     And  even  if  the  circumstances  had  been  known, 


4  Bingham,  496.  57 

it  is  by  no  means  clear  that  they  would  have  furnished  a  defence  to  the 
action. 

BuRRouGH  J.  I  see  no  ground  for  saying  that  the  plaintiffs,  as  legal 
holders,  had  not  aright  to  sue  on  this  note. 

Gaselee  J.  It  is  not  necessary  to  enquire  what  would  have  been 
the  result  if  the  plaintiffs  had  had  notice  of  all  the  circumstances,  for 
upon  this  case  they  are  fully  entitled  to  recover.  There  is  strong  reason 
to  believe  that  the  note  was  given  by  the  defendant  expressly  to  cover 
the  plaintiffs'  advances,  for  it  is  made  not  to  Morrall  alone,  but  to  order. 
The  plaintiffs,  therefore,  might  well  deem  it  a  note  which  they  were  en- 
titled to  apply  to  their  advances. 

Judgment  for  the  plaintiffs. 


WILCOXON  V.  NIGHTINGALE— p.  501. 

In  an  action  against  the  sheriff  for  an  escape,  it  is  sufficient  to  allege,  that  the  writ 
for  the  caption  of  the  escaper  was  duly  indorsed  for  bail  for /.,  without  ad- 
ding, "  by  virtue  of  an  affidavit  made  and  filed  of  record." 

This  was  an  action  against  the  sheriff  of  Cambridgeshire.  The  first 
count  of  the  declaration  was  for  voluntarily  permitting  the  escape  of  one 
John  Ward  Kirke  on  mesne  process  issued  by  the  plaintiff. 

There  was  a  second  count  for  not  arresting  Kirke,  and  a  third  for  not 
assigning  the  bail-bond. 

The  declaration  alleged  that  the  writ  of  capias  for  arresting  Kirke 
was  "duly  marked  or  indorsed  for  bail  for  25/.  and  upwards;"  and, 
being  so  indorsed,  afterwards,  and  before  the  return  thereof,  was  deliver- 
ed to  the  defendant,  who  then  was  sheriff  of  Cambridgeshire,  to  be  exe- 
cuted. But  in  none  of  the  counts  was  it  averred  that  the  writ  was  in- 
dorsed for  bail,  by  virtue  of  an  affidavit  of  the  cause  of  action  for  the 
sum  specified  before  them  made  and  filed  of  record. 

Demurrer,  assigning  for  cause  the  omission  of  such  averment,  and 
joinder. 

Storks  Serjt.  in  support  of  the  demurrer.  By  12  G.  1.  c.  29.,  5  G. 
2.  c.  27.,  and  21  G.  2.  c.  3.  it  is  enacted,  that  in  all  cases  where  the 
plaintiff's  cause  of  action  shall  amount  to  the  sum  of  10/.  and  upwards, 
an  affidavit  shall  be  made  and  filed  of  record  of  such  cause  of  action,  and 
for  the  sum  or  sums  specified  in  the  said  affidavit,  nnd  no  more,  the 
sheriff  or  other  officer  to  whom  writ  or  process  sli.dl  be  directed  shall 
t.iko  bail;  and  if  no  such  affulavit  sh;ill  bo  made  as  aforesaid,  the  plaintiff 
or  plaintiffs  shall  not  proceed  to  arrest  the  body  of  the  defendant. 

In  all  actions  against  sheriffs  for  a  breach  of  duty,  it  is  necessary  to 
shew  the  obligation  of  the  defendant  strictly.  The  omission  of  an  aver- 
ment, (after  stating  a  comniituMMit  to  prison)  that  the  committal  was  ot 
record,  was  held  fiital  on  special  demurrer.  lidrns  v.  Ei/lcs,  8  Taunt. 
512;  Ballon  v.  Ki/les,  4  H.  Moore,  425.  So  the  trilling  omission  of  the 
words  "  of  tlic  Bench,"  in  the  averment  that  the  slu^riff  had  not  the 
body  *'  before  our  said  lord  the  king"  on  the  return  day,  was  also  held 
bad  on  special  demurrer*.  Slovia  v.  /'crn'm^/*  M.  &  1'.  5(il  ;  7'urnfr  v. 
Ef/Ie.s,  .'{  H.  &:  P.   I5G. 

vor..  XV.  S 


58  WlLCOXON    V.  NlGHTINliAl.E.    11.  T.   1828. 

In  the  present  case,  an  afTitlavlt  of  the  amount  of  tho  debt  filed  of 
record  was  necessary  to  enable  the  sherid'lo  arrest  the  defendant  in  the 
first  action,  otl>er\vise  the  arrest  would  have  been  illegal  as  upon  a  void 
process. 

IVebb  V.  Heme,  1  B.  &  P.  281,  is  not  an  authority  upon  this  ques- 
tion; for  Croke  v.  Bowling,  the  case  cited  by  the  Judges  Irom  Buller's 
Nisi  Friiis,  p.  14,  was  an  action  for  a  malicious  prosecution,  in  which 
it  certainly  was  not  necessary  to  set  out  that  the  plaintiff  had  made  any 
affidavit.  Jfliiskard  v.  JVildcr,  1  liurr.  330,  was  an  action  on  a  bail- 
bond,  and  not  against  a  sheriff.  This  is  an  action  against  an  officer,  and 
the  plaintiff  is  bound  to  set  out  on  the  record,  and  prove  that  he  has 
complied  in  all  respects  with  his  duty,  before  he  can  complain  of  the 
misconduct  or  breach  of  duty  of  the  sheriff. 

Best  C.  J.  It  is  not  necessary  that  the  declaration  in  this  action 
should  contain  a  statement  of  the  filing  of  the  affidavit.  No  case  has 
gone  that  length.  It  has  only  been  laid  down  that  in  favour  of  a  public 
officer  the  Courts  will  decide  on  grounds  purely  technical.  The  statute 
12  G.  1.,  indeed,  requires  that  previously  to  an  arrest  an  affidavit  of  the 
cause  of  action  shall  be  filed;  but  the  sheriff  has  nothing  to  do  with  the 
affidavit.  If  the  plaintiff  or  the  officer  of  the  Court  indorse  a  writ  improp- 
erly, they  are  punishable  for  their  misconduct;  but  the  slierifi' is  only 
bound  to  see  that  the  writ  is  indorsed.  It  is  impossible  that  he  should 
know  in  Cornwall  whether  an  affidavit  has  been  duly  filed  in  J..ondon. 
In  Casburn  v.  Eeid,  2  B.  Moore,  60,  it  is  laid  down  that  if  the  filing 
of  the  affidavit  be  alleged  in  the  declaration,  it  must  be  proved;  but  it  was 
also  thought  that  the  allegation  might  be  omitted,  and  by  the  omission 
superfluous  evidence  is  spared. 

Park  J.  I  am  of  the  same  opinion.  The  precedents  are  both  ways; 
and  if  the  filing  of  the  affidavit  be  stated,  the  Courts  hold  that  it  must  be 
jiroved;  but  it  is  not  necessary  to  state  it.  The  point  was  much  canvas- 
sed in  Casburn  v.  lieid,  and  that  was  the  decision  which  the  Court 
jironounced.  The  present  declaration  states  that  the  writ  was  duly  in- 
dorsed; which  means  indorsed  according  to  law.  The  objection  is 
most  frivolous  ;  and  if  it  could  prevail,  would  be  disgraceful  to  the 
law. 

BuRROuGH  J.  It  is  sufficient  for  the  sheriff  if  the  sum  demanded  be 
duly  marked  on  the  writ.  A  declaration  need  only  becertain  to  a  ceilain 
intent  in  general,  and  this  is  so. 

Gaselee  J.  In  Casburn  v.  Reid  ihc  Court  referred  to  Webb  v.  Heme, 
where  Buller  J.  said,  '*I  remember  a  case  in  Lord  Mansfield's  lime, 
where  it  was  held  unnecessary  to  produce  the  affidavit."  If  the  prece- 
dents had  uniformly  stated  the  filing  of  the  affidavit,  perhaps  there 
might  be  some  weight  in  the  objection;  but  I  find  the  declaration  has 
been  framed  in  various  ways,  in  general  alleging  only  that  the  writ  was 
delivered  to  the  sheriff. 

Ourjudgment,  therefore,  must  be  for  the  plaintiff. 

Judgment  for  the  plaintiffaccordingly. 


4  Bingham,  505.  59 


DOE  dem.   STEVENS  and  Another  v.  SCOTT.— p.   505. 

Devise  to  C.  S.  in  trust  for  the  separate  use  of  S.  S.,  and  to  convey  the  premises 
to  S.  S.  lier  heirs  and  assigns,  free  from  the  control  of  lier  present  or  any  future 
liusband,  and  to  permit  her  to  take  the  rents  and  profits  : 

Held,  that  S.  S-  had  no  power  of  devising  the  premises. 

The  lessors  of  the  plaintiff  claimed  the  property  in  dispute,  as  trustees 
of  Sarah  Scott,  under  the  will  of  Mary  Wilcox,  which  was  as  follows: 
"I  give  and  devise  unto  Charles  Stevens  and  his  heirs,  all  that  my 
messuage  or  tenement,  dwelling-house  and  premises  situate  in  Ayleshury 
Street,  Clerkenwell,  now  in  lease  to  and  in  the  possession  of  JNIr.  Scott; 
and  all  that  my  freehold  messuage  or  tenement,  with  the  appurtenances, 
situate  and  being  in  Gray's  Inn  Lane,  in  the  parish  of  St.  Andrew, 
Holborn,  known  by  the  ?ign  of  the  Black  Dog  and  Punch  Bowl,  in  the 
possession  of  Mr.  Mouse  or  his  undei'-tenants,  in  trust  to  and  for  the  sole 
and  separate  use  of  my  daughter  Sarah  Scott,  andto  convey,  assign,  and 
assure  the  said  last-mentioned  freehold  messuage,  tenement,  and  premises 
unto  her,  the  said  Sarah  Scott,  her  heirs  and  assigns  for  ever,  free  from 
and  independent  of  the  debts,  control,  power,  or  engagements  of  her 
present  or  any  future  husband, 'and  to  empower  and  permit  her  to  take 
and  receive  the  rents,  issues,  and  profits  of  the  said  last-mentioned 
premises,  and  to  give  receipts  and  discharges  for  the  same  from  time  to 
time,  or  to  appoint  an}'  person  to  receive  the  same  as  if  she  was  sole  and 
unmarried. '^  The  defendant  claimed  under  the  will  of  Sarah  Scott  as  fol- 
lows: '<  1  give  and  bequeath  to  my  husband,  Charles  Scott,  my  two 
freehold  houses,  one  known  by  the  sign  of  the  Black  Dog  and  Punch 
Bowl,  a  public  house  in  Gray's  Inn  Lane,  in  the  parish  of  St.  Andrew, 
Holborn,  now  in  the  possession  of  Messrs.  Reid  and  Co.  Liquor  Pond 
Street,  and  the  other  now  in  my  husband's  ])Ossession,  namely.  No.  3, 
in  Aylesbury  Street,  Clerkenwell,  in  the  parish  of  St.  John,  which  is 
joined  to  St.  James's  Clerkenwell,  with  all  shops,  out-houses,  yards,  and 
appurtenances  thereto  belonging,  as  left  at  my  sole  disposal  by  my 
mother's  will,  namely,  Mary  Wilcox,  late  of  No.  9,  ClerkenwellClosc, 
for  and  during  his,  my  said  husband,  Charles  Scott's  natural  life." 

At  the  trial  of  liie  cause,  Middlesex  sittings  in  Michaelmas  term  Inst, 
a  verdict  was  found  for  the  lessors  of  the  plaintiff,  with  liberty  for  the 
defendant  to  move  to  set  it  aside,  and  enter  a  nonsuit  instead. 

Junes  Serjt.  having  obtained  a  rule  nisi  to  that  efi'ect, 

Taddy  Serjt.  shewed  cause.  Under  Mary  Wilcox's  wdl,  Sarah 
Scott  took  only  an  e(juilablc  interest;  the  legal  estate  was  in  the  trustees, 
to  enable  ibem  to  secure  the  profits  to  Sarah  Scott's  separate  use  {II(ir- 
Inn  V.  JIdrlon,  7  T.  K.  G52;  Junes  v.  Lord  Say  and  Sclc^  1  \'^k\.  ('as. 
Abr.  38.3);  and  she  could  not  divest  them  of  il  by  a  devise  which  she  had 
no  authority  to  make. 

Jones,  contra,  cited  Due  dem.  Player  v.  Nicholls,  1  B.  &  C.  336. 

Pauk  J.  It  is  admitted  that  at  the  time  of  the  devise  by  Mrs.  Scott, 
tlic  legal  estate  in  the  premises  in  question  was  in  her  trustees,  for  the 
purpose  of  securing  her  agninst  the  rights  of  her  husband;  but  as  the 
beneficial  interest  was  left  to  her  in  fee,  we  arc  called  on  .to  presume 
that  she  had,  incidentally  to  such  interest,  a  power  of  devising.  That 
would  be  going  further  than  any  court  of  law  has  liilhcrlo  done,      in 


60  Akld  v.  Stocks.   H.  T.  1828. 

Junes  V.  I^ord  Sat/  ami  Se/c,  ihc  devise  was  to  trustees  and  their  heir?, 
in  trust  to  pay  several  legacies  and  annuities,  and  to  pay  the  surplus  to 
a  feme  covert  for  life  to  lier  separate  use,  or  as  siie  should  direct;  and 
after  her  death,  the  trustees  to  stand  seised  to  the  use  of  her  body,  with 
remainders  over.  And  it  was  holden,  that  the  use  was  executed  in  the 
truPtees  and  their  heirs  during  the  life  of  the  feme  covert,  and  after  her 
death,  in  the  persons  entitled  to  take.  Here,  in  the  same  way,  Sarah 
Scott  had  a  trustee  for  her  life;  and  even  if  she  had  survived  her  husband, 
it  may  be  thought  the  trustee  ought  to  have  held,  to  secure  her  against 
a  future  husband,  though  after  her  death  he  might  be  bound  to  convey  to 
her  heir.  At  all  events,  it  is  clear  that  Sarah  Scott  had  no  power  to 
devise. 

BuRROUGH  J.  The  words  of  the  will  clearly  give  the  legal  estate  to 
the  trustees,  and  there  is  no  possible  ground  for  presuming  that  Sarah 
Scott  had  a  power  to  devise. 

Gaselee  J.  I  never  entertained  any  doubt  on  the  subject,  and  only 
reserved  the  point  to  save  the  expense  of  a  second  trial.  The  legal  estate 
is  in  the  trustees,  and  on  the  death  of  Sarah  Scott,  they  are  trustees  for 
her  heir  atkw.     The  rule  must  be 

Discharged. 


AKED  V.  STOCKS,  BARSTOW,  and  Others.— p.  509. 

The  plaintiff  having  sued  a  magistrate,  gave  notice  of  his  cause  of  action;  that 
the  magistrate  had  unlawfully  convicted  him  of  not  paying  wages,  and  had 
issued  a  warrant  for  seizing  his  goods  directed  to  J.  Bark,  under  which  they 
were  seized  accovdingly. 

The  warrant  having  been  directed  to  the  constable  of  Halifax,  and  not  to  J.  Bark: 
Held,  that  the  notice  was  insufficient. 

This  was  an  action  of  trespass  against  two  magistrates  of  the  West 
Riding  of  Yorkshire,  and  four  other  persons,  who  sufi'ered  judgment  to 
go  by  default.     The  magistrates  pleaded  the  general  issue. 

The  notice  of  action  served  on  the  magistrates  pursuant  to  the  statute 
24  G.  2.  c.  44,  was  for  having  caused  the  plaintiff  "to  be  unlawfully 
convicted  for  not  paying  to  Thomas  Wood,  of  Halifax,  card-maker, 
the  sum  of  10/.  for  wages  supposed  to  be  due  to  the  said  Thomas  Wood, 
and  the  further  sum  of  155.  Gd.  for  costs  alleged  to  have  been  incurred 
by  Thomas  Wood  in  recovering  the  said  wages,  and  for  having  issued 
a  warrant  in  writing  under  their  hands  and  seals,  bearing  date  on  or 
about  the  third  of  March,  1S27,  directed  to  Joseph  Bark,  thereby  com- 
manding him  to  distrain  the  goods  and  chattels  of  the  plaintiflfor  satis- 
fying the  said  sum  of  10/.  155.  Gd.,  under  which  warrant,  the  premises 
of  the  plaintiff,  situate  at  Halifax,  were  unlawfully  entered,  and  his 
goods  and  chattels  therein  forcibly  taken  and  dis^trained,  and  sold  and 
disposed  of,  to  his  loss." 

At  the  trial  before  Bayley,  J  ,  last  York  Summer  Assizes,  the  war- 
rant produced  under  a  notice  to  the  defendants  to  produce  it,  appeared 
to  be  addressed  not  to  Joseph  Bark,  but  to  "the  constable  of  the  town- 
ship of  Halifax."  It  further  appeared,  that  one  Brearly,  and  not  Bark, 
was  the  constable  of  that  townsliip;  that  Bark  was  not  a  constable;  and 
it  did  not  appear  that  tlie  m3g:>trates  had  employed  Bark  to  levy  the 
distress. 


4  Bingham,  509.  61 

Upon  this  variance  a  verdict  was  found  for  tlic  magistrates,  willi 
leave  for  the  plaiiititf  to  move  to  set  it  aside,  and  enter  a  verdict  for  the 
plaintiff,  if  the  Court  should  he  of  opinion  that  the  notice  was  not  in- 
correct. 

Cross  Serjt.  accordingly  obtained  a  rule  nisi  io  that  effect,  which  the 
Court,  stopping  JVilde  Serjt.,  who  was  to  have  shewn  cause,  called  upon 
him  to  support. 

Park  J.  I  am  sorry  when  any  man  is  tripped  up  by  a  formal  ob- 
jection, and  the  Court  would  go  great  lengths  to  sustain  the  argument 
in  favour  of  the  plaintiff;  but  we  are  bound  to  the  strict  constiuction  of 
an  act  of  parliament  passed  expressly  for  the  protection  of  justices  of 
peace  in  the  execution  of  their  office.  Country  magistrates,  acting  with 
the  most  honourable  intentions,  may  occasionally  be  entrapped  into 
error  by  want  of  knowledge  of  the  law,  and  this  statute  enables  them 
to  get  out  of  the  dilEculty  by  tendering  amends. 

The  question  therefore  is,  Whether  this  notice  sufficiently  discloses 
the  plaintiff's  cause  of  action  within  the  meaning  of  the  statute.  lu 
Strickland  v.  Ward,  7  T.  R.  n.  G31.  633,  it  was  holden,  that  a  mis- 
take in  the  description  of  the  form  of  action  was  fatal  to  the  validity  of 
the  notice.  It  has  since  been  determined,  that  it  is  not  necessary  to 
state  in  the  notice  the  precise  form  of  action;  but  the  notice  in  the  pre- 
sent case  describes  the  cause  of  action  to  be  a  warrant  directed  to  J.  Bark, 
and  the  warrant  signed  by  the  defendant,  when  produced,  appears  to 
be  directed  to  the  constable  of  Halifax.  No  doubt  it  appears  hard  upon 
the  plaintiff  that  this  should  vitiate  his  notice;  but  the  act  prescribes  that 
no  evidence  shall  be  received  of  matters  not  specified  in  the  notice,  and 
when  I  find  that  the  cause  of  action  was  a  warrant  directed  to  the  con- 
stable of  Halifax,  I  cannot  think  that  evidence  ought  to  have  been  re- 
ceived of  a  warrant  directed  to  J,  Bark,  who  was  not  a  constable  at  all. 
The  statute  too  empowers  the  plaintiff  to  demand  a  copy  of  the  war- 
rant, and  if  he  falls  into  error  by  undertaking  to  set  it  out  without  de- 
manding a  copy,  he  cannot  complain  of  the  consequence. 

Gaselee  J.  (a)  I  should  be  glad,  if,  consistently  with  the  deci- 
ded cases,  we  could  comply  with  the  plaintiff's  application:  but 
looking  at  the  long  string  of  decisions  which  have  put  a  strict  construc- 
tion oti  the  act,  I  feel  that  we  arc  not  at  liberty  to  do  so.  The  act  re- 
quires that  the  plaintiff  shall  give  the  magistrate  notice  of  the  cause  of 
action,  and  it  has  been  held  tliat  the  cause  must  be  particularly  stated. 
In  Ward  v.  Strickland,  the  ('ourt  held  the  notice  bad,  because  there 
was  a  mis-statement  of  the  cause  of  action;  and  thougli  it  was  afterwards 
determined  that  the  cause  of  action  need  not  be  specified,  yet  if  the 
plaintiff  undertakes  to  specify  it,  he  must  do  so  correctly.  In  the  pre- 
sent case,  the  substantial  cause  of  action  is  the  conviction  of  the  plaintiff, 
and  the  unlawful  issuing  of  a  warrant  to  Bark.  Perhaps  it  might  not 
have  been  necessary  for  the  plainlilf  to  have  named  the  person  to  whom 
the  warrant  was  directed;  l)ut  having  undertaken  to  do  so,  his  notice  is  not 
sufficient  to  su[)port  an  action  for  the  seizure  of  his  goods  under  a  war- 
rant directed  to  the  constable  of  Halifax.  The  rase  is  not  in  substance 
distinguishable  from  Ward  v.  Strickland ,  and,  therefore,  the  rule 
must  be 

Discharged, 
(a)  Duirotigli  J.  wm  absent  at  clianibcrs. 


6^  Smith  v.  Backwf.i.l.  U.  T.  182S. 


SMITH  aiul  Others  v.  BACKWELL.— p.  512. 

Where  dcfciulaiit  plciidcd  delivery  of  ;\  pipe  of  wine  in  satisfaction  of  the  i)hiiu- 
tiif 's  dcniaiid,  the  C'oorc  refused  to  permit  plaintilT  to  sign  judgment  as  for 
want  of  a  plea,  upon  affidavit  that  the  plea  was  false. 

To  the  plaintiffs'  demand  in  this  action  the  defendant  pleaded  the  de- 
livery hy  him  and  acceptance  by  the  plaintiffs  of  twenty  pipes  of  port 
wine,  in  satisfaction. 

Stephen  Serjt.,  upon  airidavit  by  one  of  ilie  plaintiffs,  that  the  plea  was 
wholly  false, — that  the  defendant  never  delivered,  and  plaintiff  never 
accepted,  twenty  i)ipes  of  port,  or  any  other  wine,  or  any  other  thing, 
in  discharge  of  the  defendant's  undertakings,— moved  for  a  rule  nisi 
to  sign  judgment  as  for  want  of  a  plea.  After  referring  to  Blewetl  v. 
Narsdcn,  10  East,  237;  Thomas  v.  Vandermoohn,  3  B.  &  A.  197; 
Barlhy  v.  Godslake,  2  B.  &  A.  199;  and  Shadweliv.  Berthoud,5  B. 
&  A.  750,  in  which  the  Court  of  King's  Bench  had  set  aside  sham  pleas 
of  judgment  recovered,  and  the  like,  on  affidavits  of  their  falsehood,  he 
relied  on  liichley  v.  Froone,  1  B.  &  C.  2S6,  where  the  plea  resembled 
the  present,  being  an  allegation  of  a  ton  of  hemp  delivered,  in  satisfaction 
of  theplaintiff'sdemand;  and  though  that  casehad  subsequently  been  over- 
ruled by  the  case  of  Meringlon  v.  Beckett,  2  B.  &  C.  81,  yet  as  this 
Court  was  not  bound  by  the  practice  of  the  Court  of  King's  Bench,  he 
urged  them  to  adopt  that  which  was  the  more  wholesome  rule,  and  sup- 
ported by  no  less  than  five  decisions:  at  least,  the  defendant  ought  to  be 
compelled  to  verify  his  plea  by  affidavit.  Nothing  could  be  more  dis- 
graceful to  the  law,  or  prejudicial  to  the  interests  of  justice,  than  allow- 
ing defendants  to  delay  a  creditor,  by  putting  falsehoods  on  record.  In 
Young  V.  Gadderer,  1  Bingh.  3S0,  the  only  case  in  this  court,  the  ap- 
plication failed,  because  it  was  not  accompanied  with  an  affidavit  that 
the  plea  was  false.      A  rule  nisi  having  been  granted, 

Spankie  Serit.,  contra,  relied  on  Meringtonv.  Beckett,  in  which 
nil  the  preceding  cases  had  been  considered,  and  the  Court  of  King's 
Bench,  thinking  they  had  gone  too  fiir,  over-ruled  Richley  v.  Proone. 
If  the  present  application  were  acceded  to,  there  would  be  an  end  of  the 
system  of  special  pleading,  and  the  merits  of  all  causes  must  be  tried  on 
affidavit.  But  the  Court  had  no  authority  to  call  on  parties  to  substan- 
tiate by  affidavit  the  truth  of  matters  they  might  advance  in  resisting  a 
claim  made  against  them.  It  was  true,  that  when  a  party  applied  for 
leave  to  plead  several  matters,  the  Court  were  empowered  to  exercise  a 
discretion  as  to  what  should  he  put  on  the  record;  but  here  there  was  no 
general  issue;  the  defendant  had  pleaded  but  a  single  plea,  and  the  Court 
had  no  power  to  interfere.  There  was  no  affidavit  that  the  plea  had  oc- 
casioned any  delay,  and  the  cause  could  not  have  been  brought  to  trial 
sooner  if  the  general  issue  had  been  pleaded,  to  which  no  objection  could 
have  been  raised.  The  present  application,  therefore,  went  further  than 
any  that  had  preceded  it. 

'Stephen.  In  Thomas  v.  Vandermoolen  and  Bart  ley  v.  Godslake 
there  was  no  application  for  leave  to  plead  several  matters,  and  yet  the 
plea  was  set  aside. 

Park  J.     I  am  of  opinion  that  the  Court  cannot  do  what  has  been  re- 


4  BiXGHAM,  512.  63 

quired.  I  lament  these  things,  hecausc  from  the  aflidavit  which  has  been 
filed,  and  from  the  circumstance  that  it  has  met  with  no  answer,  I  have 
little  doubt  that  this  is  a  sham  plea.  But  we  are  asked  to  require  that, 
w'hich,  except  in  one  instance,  has  never  been  required,  namely,  that 
the  defendant  should  verify  his  plea  by  aflidavit.  There  is  nothing  on 
the  face  of  it  absurd  or  inconsistent  in  the  allegation,  that  wine  has  been 
given  in  satisfaction  of  a  demand.  But  in  Bieivett  v.  Mcn^sden  a  plea 
of  satisfaction  by  judgment  recovered  in  the  Court  of  Piepoudre,  was  just- 
ly deemed  a  mockery  too  glaring  to  remain  on  the  records  of  the  Court 
of  King's  Bench.  Richley  v.  Proone  was  decided  in  one  of  those  bye- 
sittings  after  the  term  had  concluded,  and  was  fully  considered  in  Me- 
ringtonv.  Beckett;  and  I  entirely  coincide  with  what  fell  from  the  Chief 
Justice  in  that  case.  In  Young  v.  Gadderer,  though  there  had  been  re- 
peated promises  to  pay,  the  Court  refused  to  set  aside  a  plea  of  judgment 
recovered.  There  is  great  weight  in  the  observation  made  on  the  part 
of  the  defendant,  that  here  has  been  no  application  for  leave  to  plead 
double;  because  upon  such  applications  the  Court  is  entitled  to  exercise  a 
discretion,  and  that  distinction  was  made  in  Bones  v.  Punter,  2  B.  & 
A.  777.  Here  there  is  only  a  single  plea;  the  defendant  is  under  no  rule 
to  plead  issuably,  and  we  should  exceed  our  jurisdiction  if  we  acceded  to 
the  application. 

BtrRROuGH  J.  I  object  to  this  application  in  toto.  By  and  by,  it 
will  be  said  that  a  defendant  must  not  plead  the  general  issue  without  an 
aflidavit  of  its  truth;  that  is  often  as  false  a  plea  as  the  present;  but  the 
principle  of  our  law  is,  that  the  plaintifl'  must  make  out  his  case.  With 
respect  to  pleas  in  abatement,  the  statute  of  Anne  has  required  an  aflidavit 
of  their  truth;  and  if  it  had  been  thought  fit  to  require  an  affidavit  in 
other  cases,  it  would  have  been  easy  to  have  so  enacted  it;  but  the  ab- 
sence of  any  such  enactment,  when  the  attention  of  the  legislature  had 
manifestly  been  called  to  the  subject,  shows  that  it  was  not  deemed  pro- 
per to  extend  the  practice  further. 

Gaselee  J.  Perhaps  it  is  necessary  that  something  should  be  done 
to  abolish  sham  pleading;  but  the  Court  cannot  interfere  upon  the  pre- 
sent occasion.  Where  the  plea  has  raised  diilcrent  issues,  has  been  ex- 
ceedingly intricate,  or  has  been  a  mockery  of  the  proceedings  of  the 
Court,  a  discretionary  power  has  sometimes  been  exercised  by  the. Judges; 
but  that  cannot  be  done  with  respect  to  a  single  plea,  which  has  nothing 
improper  on  the  face  of  it. 

Kulc  discharged. 

The  Court  intimated,  that  in  future  similar  applications  should  be  dis- 
charged with  costs. 


TUCKER  and  Others,  Assignees  of  JOHN  ANTHONY  GILBERT, 
a  Bankrupt,  v.  JOHN  HUMPHREY.— p.  3\n. 

The  shippers,  actinia  for  G.,  purchased,  and  paid  for  with  their  own  money, 
flour  at  Stockton,  which  was  sent  l)y'  a  vessel  to  I>on(lon,  and  tlic  invoice  for- 
warded to  (i.  A  manifest  of  the  flour  was  also  forwarded  hy  tlie  shippers  to  a 
wharfin^^er  in  London,  whose  pi'acticc  it  was  to  deliver  goods  to  the  consiRncc 
named  in  the  manifest  upon  application,  and  till  application  to  keep  it  on  hoard 


64       TucKEU  V.  Humphrey.  H.  T.  1828. 

the  vessel;  if  not  applied  for  before  the  vessel  returned,  he  landed  it,  and  kept 
it  in  his  warehouse,  to  the  order  of  the  shipper;  if  the  goods  were  to  be  deli- 
vered to  order,  lie  delivered  them  to  persons  prodncing  either  bills  of  lading 
or  the  sliipper's  invoices,  (i.  was  in  the  hal)it  of  having  flonr  consigned  to  him 
at  the  wliarf,  and  sometimes  sold  it  on  board,  sometimes  when  it  was  landed, 
and  kept  for  him  in  tlic  wharfinger's  warchotiscs. 
Tlic  flour  in  question  arrived  at  the  wharf  on  the  12th  of  April,  but  was  not  land- 
ed till  the  22d;  on  the  17th,  before  any  ajjplication  by  Ci.,  who  had  l)ecome 
bankrupt,  the  flour  was  claimed  under  an  order  from  the  shippers:  Held,  that 
the  flour  not  having  been  landed,  nor  any  application  having  been  made  by  G., 
the  shippers  might  stop  in  transitu. 

Park  J.  This  case  came  before  the  Court  upon  a  motion  to  set  aside 
an  award,  in  part,  of  a  learned  barrister,  and  which  the  Court,  for  the 
importance  of  it,  desired  mij^ht  be  argued  as  a  special  case.  The  action 
was  an  action  of  trover,  and  it  had  been  referred  by  an  order  of  the  Chief 
Justice,  since  made  a  rule  of  Court,  to  the  award  of  Mr.  Archbold.  The 
claim  was  for  three  several  parcels  of  flour;  one  for  the  value  of  260/.  10.9. 
for  which  the  arbitrator  decides  that  the  plaintiifs  are  to  recover:  one  for 
fifty  sacks;  and  he  decides  that  for  those  the  plaintiffs  are  not  to  recover: 
and  upon  these  two  points  no  question  now  arises.  The  third  parcel 
consisted  of  twenty-five  sacks  of  flour,  amounting  to  52/.  lO*. ;  and  as  to 
these,  the  arbitrator  states  a  variety  of  facts,  upon  which  he  wishes  to 
take  the  opinion  of  the  Court,  and  which  is  the  point  upon  which  the  ar- 
gument has  been  had.  The  question  is,  whether  Messrs.  Wilkinson, 
the  shippers  of  the  flour,  had  a  right  to  stop  it  in  transitu,  under  the  cir- 
cumstances of  the  case.      The  facts  found  by  the  arbitrator  are  these: — 

<' The  twenty-five  sacks  in  question  were  purchased  by  Messrs.  Wil- 
kinson and  Company  of  Stockton,  for  the  said  John  Anthony  Gilbert, 
with  their  own  money:  they  charged  no  profit  upon  them,  but  merely  a 
commission  of  Is.  per  sack  for  purchasing  them;  and  they  shipped  them, 
together  with  the  remainder  of  a  cargo  of  other  goods,  by  a  vessel  named 
the  Cumberland,  bound  for  London.  This  vessel  was  consigned  by 
]Messrs.  Wilkinson  and  Company  to  the  defendant's  wharf,  and  they 
sent  to  the  defendant  by  post  a  manifest  of  the  cargo;  they  sent  also  to 
Gilbert  an  invoice  of  these  twenty-five  sacks  of  flour,  stating  them  to  be 
bought  and  shipped  for  him  on  his  account  and  risk.  When  a  ship  was 
thus  consigneJ  by  Messrs.  W^ilkinson  and  Company  to  the  defendant's 
wharf,  they  always  sent  a  manifest  of  the  cargo  to  the  defendant  by  post, 
and  in  this  manifest  the  diflerent  items  of  the  cargo,  and  their  marks,  &c. 
were  inserted,  and  opposite  to  each  item  either  the  name  of  the  con- 
signee or  the  words  lo  order  were  written.  When  such  vessel  arrived  at 
the  wharf,  those  goods  to  which  the  consignee's  name  was  annexed  in 
the  manifest,  were  delivered  to  such  consignee  or  his  order,  upon  appli- 
cation; and  those  to  which  the  words  or  order  were  opposite  in  the  mani- 
fest, were  delivered  to  the  order  of  Wilkinson  and  Company,  that  is  to 
say,  to  persons  producing  either  bills  of  lading  for  the  goods,  or  Wilkin- 
son and  Company's  invoices  of  them  respectively.  Flour  thus  appearing 
to  bo  shipped  to  order  by  the  manifest,  was  always  left  on  board  the 
vessel,  and  not  landed  until  such  bill  of  lading  or  invoice  was  produced; 
but  if  no  such  bill  of  lading  or  invoice  was  produced  by  the  time  the 
vessel  began  to  take  in  her  return  cargo,  then  the  flour  was  landed  and 
placed  in  the  defendant's  warehouses,  and  there  kept  to  the  order  of  the 
shippers.      Gilbert,  the  bankrupt,  was  in  the  habit  of  having  flour  ship- 


4  Bingham,  516.  65 

peel  for  him  from  Stockton,  and  which  came  to  the  defendant's  wharf;  and 
Gilbert  always  in  such  cases  cither  sold  it  on  board  before  itwaslanded, 
or  it  was  landed  and  kept  for  him  in  the  defendant's  warehouses  until  he 
sold  it,  so  that  the  defendant's  wharf  was  always  deemed  the  place  of  its 
destination.  The  twenty-five  sacks  of  flour  in  question  were  shipped  on 
board  the  Cumberland,  on  the  5th  day  of  April  1824,  and  arrived  at  the 
w^harf  on  the  12th, but  were  not  landed  until  between  the  22d  and  26th 
of  the  same  month.  On  the  17th  day  of  the  same  month  an  order  froni 
Wilkinson  and  Company,  directed  to  the  defendant,  requiring  him  to 
deliver  their  twenty-five  sacks  of  flour  to  Messrs.  Atkinson  and  Cramp, 
was  produced  to  the  defendant  by  Cramp,  and  tlie  flour  was  then  claim- 
ed by  Cramp  on  the  part  of  Wilkinson  and  Company.  Gilbert,  at  that 
time,  was  a  bankrupt.  He  had  committed  an  act  of  bankruptcy  on  the 
lOthday  of  April  1S24:  on  the  14th  a  commission  of  bankrupt  was  there- 
upon issued  against  him,  and  on  the  19th  of  the  same  month  the  messen- 
ger under  that  commission  produced  to  the  defendant  the  invoice  of  the 
twenty-five  sacks  of  flour  in  question,  which  had  been  sent  by  Wilkinson 
and  Company  to  Gilbert,  as  before  mentioned,  and  demanded  the  flour, 
which  was  refused  to  him.  Messrs.  Atkinson  and  Cramp  afterwards 
landed  the  flour,  and  sold  it  for  the  account  of  Wilkinson  and  Company. 
The  parties  to  this  action  have  consented,  that  in  case  his  Majesty's 
Court  of  Common  Pleas  shall  be  of  opinion,  that,  under  the  circum- 
stances hereinbefore  stated,  the  plaintiflsare  not  entitled  to  recover  for  the 
value  of  the  said  last  mentioned  parcel  of  flour,  consisting  of  twenty-five 
sacks  as  aforesaid,  then  and  in  such  case  my  award  in  favour  of  the  plain- 
tifls,  for  the  value  of  the  said  first  and  last  parcels  of  flour  above  mentioned, 
amounting  to  the  sum  of  315/.,  shall  be  reduced  by  the  amount  of  the 
value  of  the  said  last-mentioned  parcel,  that  is  to  say,  the  sum  of  53/. 
lO.y.  aforesaid." 

Upon  these  facts  it  was  contended  by  Mr.  Serjt.  Edward  Lmucs,  on 
behalf  of  the  assignees,  that  by  the  arrival  of  the  ship  at  the  wharf  the 
transit  was  over;  tliat  the  wharf,  though  the  goods  were  not  delivered 
out  of  the  hold  of  the  ship,  was  to  be  considered  as  the  warehouse  of 
Gilbert,  the  i)ankrupt,  just  as  much  as  if  the  cargo  had  been  removed 
into  one  of  the  warehouses  of  the  wharf,  and  had  been  marked  by  the 
bankrupt,  warehoused  in  his  name,  or  j)ut  under  l)is  lock  and  key. 

This  has  been  well  argued  on  both  sides,  and  nobody  can  doubt  that 
if  sucii  a  state  of  things  as  is  above  supposed  had  existed,  such  as  the 
goods  being  put  into  a  warehouse  on  the  wharf,  which  the  bankrupt, 
having  no  warehouse  of  his  own,  had  been  in  the  habit  of  using  as  his 
own,  and  marking  or  doing  some  act  upon  them,  the  transit  would  have 
been  over.     Jiut  the  question  is,  whothcr  that  be  the  slate  of  things. 

The  general  nature  of  the  right  to  slop  in  transitu  has  very  properly 
not  been  argued:  for  although,  comparatively  speaking,  such  right  has 
not  been  long  known  to  the  common  law,  |)erhaps  not  above  seventy 
yn.ars,  having  I)cen  at  that  time  transplanted  from  the  courts  of  equity; 
yet  it  has  sincebcencstablishedbysucha  variety  of  decisions,  thatit  is  now 
regarded  with  favour  by  the  former  as  a  right  which  they  arc  always 
disposed  to  assist,  not  |)roccc(Iing  at  all  on  the  ground  of  the  contract 
being  rescinded  by  the  insolvency  or  bankruptcy  of  the  consignee  of 
the  goods,  but  as  an  eriuilable  right  adopted  for  the  purposes  of  substan- 
tial justice.     IJut  this  case  Ins  been   correctly  argued  upon  the  ground 

VOL.    x\ .  <J 


'"•o  Tlcklu  r.   lluMiMiuLv.   H.  T.  1828. 

whether  the  transitus  was  ooiitiiniiiis!;,  or  whether  it  was  at  an  eiul  and 
iletermincd.  Every  case  of  this  sort  must  dci)cnd  on  its  own  special 
lircunistanccs.  In  some  of  the  earlier  cases,  particularly  in  that  of 
Hunter  V.  Baile,  J^ord  iMausJicld,  who  carried  the  doctrine  of  stoppage 
in  transitu  a  great  way,  seemed  to  expect  that  the  goods  must  come  to 
the  actual  corporal  touch  of  the  vendee;  but,  in  the  subsequent  case  of 
Dixon  V.  Baldwin,  5  East,  184,  Lord  Ellenboroiigh  rej)udialcs  that 
extent  of  the  doctrine,  and  puts  it  upon  a  better  footing,  and  says,  "  the 
(jucstion  is,  whether  the  party,  tu  whose  toucli  w  actually  comes,  be  an 
agent  so  far  rejn'csenting  the  principal  as  to  make  the  delivery  to  him  a 
lull,  eflectual,  and  final  delivery  to  the  principal,  as  contra-distinguished 
from  a  delivery  merely  to  a  person  acting  as  a  carrier  or  mean  of  con- 
veyance to  or  on  account  of  the  principal  in  a  mere  course  of  transit 
towards- hitn.  1  cannot  but  consider  the  transit  completely  at  an  end 
in  the  direct  course  of  the  goods  to  tiie  innkeeper,  and  that  they  were 
afterwards  under  the  immediate  orders  of  the  vendee," 

Apply  that  latter  j)rinciple  tu  this  case,  and  supposing  merely  for  argu- 
ment that  these  goods  had  actually  arrived  on  the  wharf,  yet  were  they 
ever  under  the  immediate  orders  of  the  vendee  ? 

On  the  contrary,  the  flour  in  question  liad  arrived  at  the  wharf  on  the 
12th,  but  was  not  landed  till  the  22d  ot  the  month  of  April:  no  act  of 
ownership  exercised  overit  by  Gilbert;  no  invoice,  no  bill  of  lading  ever 
produced  by  him,  or  any  agent  employed  on  his  behalf,  till  the  messen- 
ger under  the  commission  claimed  it  on  the  19th  of  the  same  month, 
the  shipper  having  octually  stopped  it  two  days  before;  so  that  the  very 
first  act  done  upon  this  flour  after  the  ship's  arrival  at  the  wharf,  was 
done  by  the  shipper  before  the  transit  to  the  hand  or  possession  of  the 
vendee  was  complete. 

Nothing,  however,  that  I  have  hitherto  said,  means  to  impeach  the 
doctrine,  first  broached  by  the  late  Mr.  Justice  Chambre  in  Richard- 
son v.  Goss,  3  Bos.  &  Pull.  127;  adopted  and  approved  by  Lord 
Alvanlc}),  when  Chief  Justice  of  this  Court,  in  Scott  v.  Fettit,  Ibid,  469; 
and  lately  by  my  brother  Bayley  in  the  case  of  Foster  v,  Frumpton, 
G  Ji.  &:  C.  109.  The  doctrine  was  this,  to  which  I,  speaking  only  for 
myself  on  this  point,  fully  accede, — that  if  a  man  be  in  the  habit  of  using 
the  warehouse  of  a  wharfinger  as  his  own,  and  make  that  the  repository 
of  his  goods,  and  disposes  of  them  there,  the  transitus  will  be  at  an  end 
when  the  goods  arrive  at  such  warehouse. 

In  the  first  of  those  cases  the  trader  had  no  warehouse  of  his  own,  but 
used  that  of  his  packer  for  receiving  goods  consigned  to  him,  and  it  was 
held  that  the  transitus  of  such  goods  was  at  an  end  upon  delivery  of  them 
to  the  packer. 

In  Foster  v.  Frampto)i  the  vendee  of  several  hogsheads  of  sugar,  upon 
receivingnoticeof  their  arrival,  took  samples  from  them,  and  for  his  own 
convenience  desired  the  carrier  to  let  them  remain  in  his  warehouse  till 
he  should  receive  further  direction:  it  was  held  upon  the  bankruptcy  of 
the  vendee,  that  the  transitus  was  at  an  end,  and  the  vendor  could  not 
stop  them;  so  here,  if  Gilbert  had  taken  samples  of  the  flour,  or  done  any 
other  act  exerting  his  authority  over  them,  that  would  have  varied  the 
case;  but  no  such  facts,  nor  any  facts  tantamount  to  these,  are  found  upon 
this  award. 

I  forbear  to  go  through  all  the  mass  of  cases  which  have  been  decided 


4  Bingham,  516.  <^/ 

on  this  subject,  Lccausc  tlic\'  would  only  latigue  the  Court,    and  uclav" 
the  other  important  busings  ot^  tlie  term.      I  believe  all  of  thern  wcr. 
quoted  on  one  side  or  the  other  by  the  leaincd  counsel,  (a)     I  have  look- 
ed at  all  of  them,  and  tlie  doctrine  now  stated  by  nic  is  not  impugne  '. 
by  any  of  them. 

One  point  only  remains  to  be  considered.  It  is  supposed  that  the  fact 
found  by  the  arbitrator,  viz.  that  Messrs.  Wilkinson,  when  they  shipped 
the  flour,  sent  an  invoice  thereof  to  Gilbert,  made  an  essential  difference, 
and  gave  him,  by  virtue  of  the  invoice,  a  perfect  control  over  them. 

But  this  surely  cannot  be  meant  as  a  serious  argument;  even  a  bill  of 
lading,  while  in  the  hands  of  the  original  consignee,  unindorsed,  cannot 
interfere  with  the  vendor's  right  to  stop  the  goods  before  they  arrive 
into  the  possession  or  under  the  control  of  the  consignee,  if  he  become 
bankrupt  or  insolvent.  If,  indeed,  the  consignee  assign  the  bill  of  lading 
to  a  third  person  for  a  valuable  consideration  bona  fide,  without  notice 
of  such  circumstances  as  render  the  bill  of  lading  not  fairly  and  honestly 
assignable,  the  right  of  the  consignor  as  against  such  assignee^is  divested; 
for  a  bill  of  lading,  so  as  above  indorsed,  transfers  the  property. 

But  I  have  never  before  now  heard  it  contended,  except  once,  that 
the  mere  possession  of  an  invoice,  which  is  onl  \'  a  mercantile  name  for  a 
bill  of  parcels  or  a  shop  bill,  could  bar  the  vendor's  right. 

The  very  contrary  to  this  has  been  decided  in  a  case  oi  Jlkcrman  v. 
Humphrey,  tried  before  my  Brother  Biirrough  in  December  1S23,  1 
Carr.  &  P.  53;  where  my  learned  Brother  decided  that  the  delivery  of 
a  shipping  note  by  the  consignee  of  goods  to  a  third  person,  with  an  order 
to  the  wharfinger  to  deliver  the  goods  to  such  third  person,  did  not  pass 
the  property  in  them  so  as  to  prevent  a  stoppage  in  transitu  by  the 
consignor. 

•  A  verdict,  thereforc,'upon  the  opinion  of  my  Brother  Burrough,  pass- 
ed for  defendant,  with  liberty  for  plaintifl  to  move  to  enter  a  verdict  for 
him.  Mr.  Serjt.  7'</^i/y  accordingly  made  such  motion,  but  Lord  Gif- 
jord,  then  Chief  Justice,  and  myself  thought  the  opinion  delivered  by 
the  learned  Judge  at  the  trial  was  correct,  and  no  lulc  was  granted. 

That  opinion  applies  most  pointedly  to  the  present  case;  for  it  is  there 
-taled  that  a  shi])|)ing  note  and  a  delivery  order  (o  the  party  mcdc  no 
idiange  of  j)roperty:  that  they  did  not  amoinit  to  a  bill  of  lading,  whicli 
is  exactly  like  a  bill  of  exchange,  and  the  proi)erty  mentioned  in  it  passes 
by  indorsement,  but  not  by  delivery  without  indorsement.  The  ship- 
ping note,  from  its  nature,  is  not  indorsible,  and  in  point  of  fact  neither 
the  shipping  note  in  that  case  nor  in  this  is  indorsed. 

I'^jr  these  reasons  wc  arc  of  oj)inion  that  the  award  is  good  upon  ilin 
two  (irst  points,  Ijut  bad  u])on  the  tljird;  that  is,  that  the  consignoi-  had  a 
riglit  to  stop  the  twenty-live  sacks  in  transitu. 

((0  E.  /.«7£<f«Scrjt.  for  tlic  i)laiiiliirs, after  dislinpjUibhiiig  Lu.sliman  v.  WiU'uimuy 
■tCanipl).  LSI,  relied  cliit.lly  tai  RkliurdH<jn  v.  C'o.v.v,  3  IJ.  &  F.  1-7;  Hojll  v.  Prltit, 
3  B.  ik  J'.  469;  Rovj,  v.  Pick  ford, H  'ruuiit.  .S3;  and  Foatcr  v.  Pratii/iton,  6  li.  ifc 
(\  lO'J;  and 

Wilde  ScTJt.  for  tlie  defendant,  on  Cru7vahcni  v.  F.udos,  1  H.  &  C.  181,  and 
.Urr/nun  v.  fhtiii/i/ircy,  1  C^arr.  2c  I'.  53, 

Laxvcs  in  reply  cited  lUifizard  v.  Ca/icl,-\:  Ring.  137,  to  slicw  that  a  bliip  .ittachcd 

lo  a  wliuri  may  be  considered  as  on  ;i  wharf.     Ihit  the  subject  bfin^  -m  fully  dis- 

iibscd  in  the  jutlrojcnt,  it  hub  been  llK'u;j,hl  uinieccibaiy  to  rei'oii  the  urj^unitnt. 


t>S  RiNDi  i:  I'.  Beaumont.  H.  T.  1828. 

BELL  V.  JACOBS.— ji  523. 

The  Court  refused  to  set  aside  a  Ixiil-hond  on  the  ground  tliat  the  defendant  had 
been  arrestetl  in  the  Tower  Hamlets  by  virtue  of  a  writ  which  had  no  no7^ 
ojiiittus  clause. 


GULLY  and  Others  v.  Bishop  of  EXFJTER  and  BOWLING.— p.  535. 

The  plaintiff  in  ijuare  imfiedit  having  traced  his  title  through  a  period  of  two 
centuries,  and  the  defendant  having,  in  forty-three  pleas,  taken  issue  on  every 
allegation  in  the  declaration,  though  the  plaintiff's  claim  rested  solely  on  the 
validity  of  a  deed  of  1072,  and  the  defendant  could  have  no  writ  to  the  bishop, 
unless  he  succeeded  in  setting  aside  that  deed,  the  Court,  ai"ter  the  declaration 
had  been  amended  twice,  and  after  trial  had,  rescinded  the  rule  to  plead  several 
matters. 


RUNDLE  V.   BEAUMONT.— p.  537. 

In  an  action  on  a  charter-party  against  a  charterer,  the  Court  refused  to  compel 
the  plahitiff  to  allow  the  detendant  an  inspection  of  the  ship's  log-book. 

This  was  an  action  on  a  charter-party  against  the  charterer  for  freight 
and  demurrage. 

Jones  Serjt.,  on  behalf  of  the  defendant,  moved  for  a  rule  nisi  to 
compel  the  plaintiff  to  allow  defendant  to  inspect  the  log-book  of  the 
ship,  on  aflidavit  that  he  considered  it  matei:ial  to  his  defence.  The 
Court,  he  submitted,  could  order  an  insj)ection  of  any  document  which 
one  party  in  a  cause  might  be  deemed  to  hold  as  trustee  or  for  the  benefit 
of  the  other:  Ratclijfe  v.  Bleasby,  3  Bingh.  148.  The  log-book  was 
kept  for  the  benefit  and  instruction  of  all  parties  interested;  as  much  for 
the  charterer  as  for  the  owner.  It  was  evidence  of  the  facts  stated  in  it; 
D^ Israeli  v.  Joiuctt^  1  Esp.  427;  JVatson  v.  King,  4  Campb.  275;  and 
inspection  was  commonly  granted  in  actions  on  policies  of  insurance. 
•     A  rule  nisi  having  been  granted, 

Wilde  Serjt.  shewed  cause.  The  charterer  has  no  interest  in  the  log- 
book, which  is  the  mere  memoraiidum  of  the  captain  of  the  ship.  It  is 
not  a  public  document,  nor  evidence  for  any  one.  In  D^ Israeli  v.  Jowett 
the  book  had  been  deposited  in  the  admiralty,  and  so  became  a  public 
document,  and  in  insurance  cases  the  production  of  the  log-book,  when 
required,  is  stipulated  for  as  a  part  of  the  terms  of  the  rule  to  consolidate 
several  actions.  In  the  Mayor  of  Southampton  v.  Graves,  8  T.  R, 
590,  the  Court  refused  inspection  of  the  books  of  the  corporation. 

Jones.  The  log-book  is  recognized  as  a  public  document  in  all  books 
of  marine  law:  and  in  cases  of  insurance,  inspection  has  frequently  been 
allowed  of  all  papers  in  the  adverse  party's  possession  relating  to  the 
cause.  Goldschniidt  v.  Marryatt,  1  Campb.  562.  No  inconvenience 
can  arise  from  compelling  the  production  of  the  book,  and  in  Clifford  v. 
.  Taylor,  1  Taunt.  \G1,  MaJisfieldQ.  J.  said,  "  This  practice  of  compell- 
ing the  delivery  of  copies  is  very  convenient,  for  it  saves  the  delay  and 
expence  of  a  bill  in  equity." 

Park  J.  There  is  no  pretencefor  this  application;  and  we  should  not 
have  granted  the  rule  nisi  if  a  case  had  not  been  cited  to  shew  that  a 
log-book  is  evidence.  But  in  D'' Israeli  v.  Jowett  the  log-book  was 
brought  from  the  admiralty,  and  was  a  public  document.     If  wc  were 


4  Bingham,  537.  69 

to  accede  to  the  present  application  we  must  overrule  our  decision  the 
other  day  in  Rowe  v.  Hoiodefi.(a)  Nothing  has  been  stated  on  affidavit 
to  shew  the  materiality  of  the  production  of  this  book;  the  inconvenience 
that  wouldresult  from  withholding  it;  or  the  interest  of  the  party  apply- 
ing. The  law  has  been  so  clearly  laid  down  in  Ratcliffe  v.  Bleasbxj 
that  I  thought  it  never  would  be  stirred  again. 

BuRROUGH  J.  Perhaps  the  case  might  stand  on  a  different  footing  if 
the  log-book  were  evidence joe;"  se\  but  it  is  only  evidence  to  contradict 
a  witness  who  has  kept  it.  In  equity  a  bill  for  discovery  furnishes  dis- 
tinct ground  for  granting  what  is  required;  but  no  grounds  have  been 
stated  on  the  present  occasion. 

Gaselee  J.  We  cannot  carry  this  rule  further  than  in  Ratcliffe  v. 
Bhashy\  this  application,  therefore,  must  fail. 

Rule  discharged. 

(a)  ROWE  and  Others  v.  HOWDEN. 

Plaintiffs,  ship-owners,  sued  defendant,  their  broker.  The  Court  refused  to  compel 
him  to  give  a  copy  of  a  letter  which  he  had  received,  touching  an  adventure  in  whioh 
the  ship  was  to  have  been  employed. 

This  was  an  action  by  ship-owners  against  their  broker. 

Jonta  Serjt.  moved  that  the  defendant  might  exhibit,  in  order  to  the  plaintiffs  copy- 
ing it,  a  certain  letter  which  iiad  come  to  the  defendant's  hands,  touching  an  adventure 
in  which  the  ship  was  to  have  been  employed. 

Wilde.  Serjt.  who  sliewed  cause,  relied  on  Ratcliffe  v.  Bleasby,  3  Blngh.  148;  contend- 
ing that  this  was  a  document  belonging  to  the  defendant,  which  there  could  be  no 
pretence  for  saying  he  held  in  trust  for  the  plaintiffs,  and  that  it  was  not  even  alleged 
to  be  necessary  to  enable  the  plaintiffs  to  declare. 

Jones.  The  defendant  has  the  letter  in  virtue  of  the  confidence  reposed  in  him  by  the 
plaintiff's;  it  regards  the  business  of  the  ship,  and  the  plaintiffs  have,  therefore,  as  great 
an  interest  in  it  as  the  defendant.  Indeed,  the  defendant  being  no  other  tlian  the  plain- 
tiffs' agent,  they,  as  principals,  are  entitled  to  claim  the  letter;  but  where  the  plaintiff"  lias 
an  interest  in-  the  paper  he  is  entitled  to  a  copy,  whether  a  confidence  have  been  repos- 
ed in  the  holder  of  it  or  not;  Baleman  v.  Fhillips,  4  Taunt.  157;  Giqncrv.  Baxily,  5  ]}. 
M.  71. 

P.*.nK  J.  There  Is  no  ground  whatever  for  this  application,  and  if  we  were  to  accede 
to  it,  we  shovild  be  flying  in  tlie  face  of  the  decision  of  this  Court  in  Ratcliffe  v.  Bleasby. 
The  plaintiffs  make  no  affidavit  that  they  cannot  declare  without  a  sight  of  the  letter  in 
question;  and  they  call  on  tills  Court  to  assume  the  jurisdiction  of  a  court  of  equity, 
and  aid  them  in  a  fisliing  1)111.  Tlicy  may  give  notice  to  the  defci\dant  to  produce  the 
letter  at  the  trial,  but  tlicy  cannot  compel  him  to  produce  what  may  be  his  evidence. 
Where  parties  have  a  common  interest  in  a  paper,  and  a  plaintiff  cannot  declare  without 
an  inspection  of  it,  the  (juestion  is  a  very  different  one,  and,  tiiereforc,  tiic  case  of  Vriimcr 
V.  Daijly  does  not  apply.  Tliere  the  plaintiff"  had  bought  lands  of  tlie  defentlants 
through  the  medium  of  an  auctioneer,  and  called  on  them  to  produce  the  contract  for 
tlie  purpose  of  stam|)ing  it,  to  enable  him  to  s\ic  tliem  for  not  performing  tlie  contract, 
niitnoi  (JH  ,\.  I  refused  this  application  at  Chambers,  I)ccausc  it  seemed  to  me  to  be 
only  fishing  for  evidence. 

Gas£lei:  J.  concurred  with  the  rest  of  the  Court  in 

Discharging  the  rule. 


(IN  THE  EXCHEqUER  CIIAMI5EU.) 

Trustees  of  the  BRITISH  MUSEUM  v.  PAYNE  and  FOSS.— p.  540. 

A  part  of  a  work,  to  which  there  were  twenty-six  subscribers,  and  of  which  only 
thirty  copies  were  printed, — pviblislicd  at  intervals  of  several  years,  at  an  ex- 
pense exceeding  the  sum  to  be  ()l)tained  by  the  price  of  the  copies,  and  which 
expense  was  defrayed  hy  a  testamentary  donation,  was  hokkn  not  to  be  a  book 
demaiidablc  by  the  Britibh  Museum  under  54  G.  3.  c.  150. 


CASES 

ARGUED  AND  DETERMINED 

IN    THE 

COURT   OF  COMMON  PLEAS, 

AND  OTHER  COURTS, 

IN 

EASTER  TERM, 

In  the  Ninth  Year  of  the  Reign  of  George  IV. — 1S28, 

COLLINS  V.  WILSON.— p.  551. 

Defendant,  -who  had  a  lease  of  land  from  N.,  entered  into  an  agreement  with  G., 
who  was  to  build  houses,  and  pay  defendant  a  rent  of  20/.  a  year.  G.  then  em- 
ployed defendant  to  Ijuild  the  houses. 

Held,  that  defendant  was  liable  to  contribute  to  a  party- wall  to  which  the  houses 
were  attached. 

Held,  also,  that  the  owner  of  the  party- wall  was  not  confined  to  ten  days  to  give 
his  notice,  but,  there  being  no  adjoining  house  when  it  was  built,  might  give  the 
notice  in  reasonable  time  after  the  adjoining  houses  were  attached. 

DOE  tlcm.  CALVERT  v.  FROWD.— p.  557. 

Defendant,  who  held  under  a  tenant  for  life,  received,  on  her  death,  a  letter  from 
the  lessor  of  the  plaintiff',  claiming  as  heir,  and  demanding  rent. 

Defendant  answered,  that  he  held  the  premises  as  tenant  to  S.;  that  he  Iiad  ne- 
ver considered  lessor  of  plaintifl"as  his  landlord;  that  he  should  be  ready  to  pay 
the  rent  to  any  one  who  should  be  proved  to  be  entitled  to  it,  but  that  without 
disputing  the  lessor  of  the  plaintiff's  pedigree,  he  must  decline  taking  upon  him- 
self to  decide  upon  his  claim,  without  more  satisfactory  proof,  in  a  legal  manner: 

Held,  that  this  was  a  disclaimer  of  lessor  of  plaintiff^s  title. 

.This  was  an  ejectment  to  recover  posses.sion  of  a  house  in  Serle  Street, 
Lincohi's  Inn  Fields,  and  tried  at  the  Middlesex  sittings  after  Trinity 
term  1827,  before  Best  C.  J.,  when  a  verdict  was  found  for  the  lessor 
of  the  plaintiff,  who  claimed  title  to  the  premises  in  question  as  heir-at- 
law  of  Mary  Whitall,  deceased. 

Mary  Whitall  was  seised  in  fee  of  the  premises,  and  died  so  seised  in  the 
year  ISOO,  devising  the  premises  for  life  to  Margaret  Hodgson,  who  after- 
wards married  George  SmallpiccC;  and  received  the  lent  during  her  life. 

M,  Hodgson  died  in  1S26. 


4  Bingham,  557.  71 

The  lessor  of  the  plaintiff  claimed  to  be  entitled  to  the  premises  as 
heir-at-law  of  Mary  Whitall,  on  the  decease  of  Margaret  Hodgson,  the 
tenant  for  life. 

At  the  trial,  the  lessor  of  the  plaintiff  having  proved  that  he  was  heir- 
at-law  to  Mary  Whitall,  and  her  seisin, 

The  following  letters  between  the  lessor  of  the  plaintiff's  attorney  and 
the  defendant  were  put  in: — 

Edward  Frowd,  Esq. 

Sir, — In  order  that  }jou  may  be  fully  informed  of  the  right  and  title  of 
my  client,  Mr.  John  Calvert,  to  the  premises  in  No.  14.  Serle  Street, 
in  your  occupation,  and  late  the  property  of  Mrs.  Margaret  Smallpiece, 
Kensington,  deceased,  I  send  you  the  particulars  enclosed,  (these  were  a 
copy  of  the  lessor  of  the  plaintiff's  pedigree,  and  a  statement  of  his  claini 
to  the  premises),  whicli  I  trust  will  fully  satisfy  you  of  his  title,  and 
that  there  will  be  no  dilliculty  or  objection  to  his  receiving  the  rent, 
which  will  be  due  the  25lh  instant,  1  shall  readily  give  you  any  further 
information  or  satisfaction  which  you  may  require,  if  you  will  make  an 
appointment  to  call  on  me  for  that  purpose. 

Yours,  &c. 

17th  March,  1S2G.  J.  Mangnall. 

Sir, — In  answer  to  your  letter  respecting  Mr.  John  Calvert's  claim  to 
thehouse  which  I  hold  as  tenant  to  Mr.  Smallpiece  in  right  of  his  wife,  I 
beg  to  inform  you,  I  have  not  hitherto  considered  Mr.  John  Calvert  as 
the  landlord  of  the  house  in  Serlc  Street,  nor  can  I  pay  any  rent  to  hin\ 
without  the  risk  of  being  hereafter  called  upon  to  pay  it  over  again  to 
the  person  who  may  fancy  and  perhaps  prove  he  has  a  better  title.  1 
shall  be  at  all  times  ready  to  pay  the  arrears  to  any  i>erson  who  shall  be 
proved  to  be  either  heir  at  law  or  otherwise  entitled  to  receive  it;  and 
without  wishing  to  dispute  the  connection  of  blood  of  Mr.  John  Calvert 
to  Mrs.  Mary  Whitall,  deceased,  I  must  decline  taking  upon  myself  to 
decide  upon  that  claim  without  more  satisfactory  proof  in  a  legal  manner. 

I  am,  &c. 

4  th  Nov.  1S2G.  Edw.  Frowd. 

On  this  evidence  the  jury,  under  the  direction  of  the  Lord  Chief  Jus- 
tice, who  thought  the  defendant's  letter  amounted  to  a  disclaimer,  found 
a  verdict  for  the  plaintill. 

A  rule  nisi  for  a  nonsuit  was  obtained  on  tlie  ground,  that  the  lessor 
of  the  plaintiff  had  treated  the  ilcfundaiit  as  his  tenant,  and  that,  there- 
fore, he  ought  to  have  had  notice  to  {piit. 

JiosaiKjnct  and  Slnrhs  Serjts.  showed  cause.  The  defendant's  letter 
amounts  to  an  express  disclaimer  of  the  title  of  the  lessor  of  the  plaintill, 
and  if  it  be  f-uch,  it  is  clear  that  notice  to  cpiit  is  not  necessary. 

JVildc  Scrjt.  contra.  The  letter  contains  no  disclaimer,  but  merely 
cautious  apprehension,  and  a  request  for  further  information  Ujion  a  mat- 
ter at  that  time  doubtful.  In  Doc  dcin.  fVilliamsx.  J^dsi/xiali,  Pcakc, 
N.  P.  C.  lfH>,  it  was  held  that  a  mere  refusal  to  pny  rent  to  a  devisee 
imdcr  a  contested  will,  accompanied  with  a  declaration  that  the  tenant 
was  ready  to  j)ay  to  any  person  (Mitilled,  did  not  amount  to  a  disclaimer; 
and  here  there  was  no  demand  of  possession  by  the  lessor  of  the  jilain- 
tiir,  so  that  the  defendant,  being  in  lawfully,  could  not  be  a  trespassri 
till  the  lessor  of  the  plaintiff  dissented  to  his  possession. 


72  Seeley  v.  Mayhew.  E.  T.  1828. 

Best  C.  J.  Mrs.  Smallpiccc,  the  lessor  of  the  defendant,  had  only  u 
life  interest  in  the  premises:  her  husband  had  no  estate  by  the  curtesy; 
the  moment  she  was  dead,  therefore,  the  lessor  of  the  plaintilf  might 
treat  the  defendant  as  a  trespasser.  If,  indeed,  the  defendant  had  ever 
])aid  rent  to  the  lessor  of  the  plaintiff,  a  new  term  would  have  been 
created;  but  this  was  not  tlie  case,  and  when  the  lessor  of  the  plaintiff  de- 
mands his  rent,  the  defendant  says,  *'I  will  not  pay,  I  am  tenant  to 
Smallpiece;"  and  at  the  trial  puts  the  lessor  of  the  plaintiff  to  prove  his 
title.  If  this  be  not  disclaimer,  what  is?  13ut  I  sliouM  not  have  thought 
differently  even  if  this  case  had  been  exactly  lilfe  the  case  oi  Doe  dem. 
JVilliams  v.  Pasquali,  because  a  notice  to  quit  is  only  requisite  where 
a  tenancy  is  admitted  on  both  sides,  and  if  a  defendant  denies  the  tenan- 
cy, there  can  be  no  necessity  for  a  notice  to  end  that  which  he  says  has 
no  existence. 

Park  J.  There  never  was  any  relation  of  landlord  and  tenant  be- 
tween these  parties;  rent  was  demanded  and  refused,  and  the  lessor  of 
the  plaintiff  could  not  make  the  defendant  tenant  against  his  consent. 
The  offer  of  the  lessor  of  the  plaintiff  was  only  sub  niodo,  and  not  ac- 
cepted. 

Gaselee  J.  If  the  defendant  had  held  under  the  ancestor  of  the  les- 
sor of  the  plaintiff,  the  question  agitated  in  Doe  dem.  Williams  v. 
Pasquali  might  have  arisen,  but  all  his  interest  expired  on  the  death  of 
Mrs.  Smallpiece. 

Rule  discharged. 


BENTON  V.  BULLARD.— p.  561. 

Costs  of  taxing  an  attorney's  bill  not  allowed  to  a  party  who  succeeds  in  striking 
off  a  sixth,  where  the  order  for  taxing  is  not  obtained  till  after  the  action  on 
the  bill  has  been  commenced. 


SEELEY  V.  MAYHEW,— p.  561. 

The  Court  will  not  grant  a  new  trial  on  the  ground  that  witnesses,  by  whose  tes- 
timony the  verdict  was  obtained,  have  been  indicted  for  perjury  in  the  cause. 

Assumpsit  against  the  defendan*:,  as  acceptor  of  a  bill  of  exchange, 
drawn  by  T.  Parish,  and  indorsed  through  R.  Oddy  to  the  plaintiff.  At 
the  trial,  London  sittings  after  Hilary  term  last,  before  Burrough  J., 
the  defendant's  hand-writing  having  been  proved,  the  defence  was  that 
tlie  bill  had  been  given  for  a  horse  sold  by  Seeley  to  Parish,  which  was 
warranted  sound,  but  was  ill  at  the  time,  and  shortly  afterwards  died. 

There  was  conflicting  evidence  as  to  the  warranty,  and  as  to  who  was 
the  seller  of  the  horse. 

'I'he  jury  having  found  a  verdict  for  the  defendant, 

Adams  Serjt.  now  moved  for  a  new  trial  on  the  ground  of  surprise, 
the  defence  not  having  been  anticipated,  and  true  bills  for  perjury  hav- 
ing since  been  found  against  the  witnesses  who  spoke  to  the  warranty, 
and  the  property  of  the  horse  being  in  Seeley.      But 


4  Bingham,  561.  73 

The  Court  thought  that  was  a  circumstance  of  which  they  ought  not 
to  take  notice,  and  observing  that  Lord  Mansfield  and  Lord  Erskine 
had  expressed  the  greatest  disapprobation  of  indicting  witnesses  while  a 
cause  was  yet  pending,  refused  the  rule.     Adams,  therefore, 

Took  nothing,  {a) 
(a)  See  Thurtell  v.  Beaumont,  1  Bingh.  339. 


ROBINSON  V.  HOFiMAN  — p.  562. 

One  joint- tenant  may,  without  the  assent  of  his  fellows,  appoint  a  bailiff  to  distrain 
for  rent  due  to  all  the  joint-tenants. 

Replevin.  Cognizances  by  defendant;  first,  as  bailifFof  Henry  Mar- 
chant,  the  elder,  Samuel  Cullum,  and  Stephen  Cullum,  for  35/.,  one 
quarter's  rent  in  arrear  to  them,  in  respect  of  a  house  held  by  the  plain- 
tiff, under  a  demise,  at  140/.  a  year,  payable  quarterly. 

Second,  As  bailiff  of  H.  Marchant,  the  elder,  for  one  undivided  moie- 
ty, and  two  undivided  fifth  parts  of  the  other  moiety  of  35/.,  one  quar- 
ter's rent  in  arrear  to  him,  in  respect  of  one  undivided  moiety,  and  two 
undivided  fifth  parts  of  the  other  moiety  of  a  house  held  by  the  plaintiff, 
under  a  demise,  at  140/.  a  year,  payable  quarterly. 

Third,  As  bailiff  of  H.  Marchant,  the  younger,  for  one  undivided 
moiety,  and  one  undivided  fiftli  part  of  the  other  moiety  of  35/.,  one 
quarter's  rent  in  arrear  to  him,  in  respect  of  one  undivided  moiety,  and 
one  undivided  fifth  part  of  the  other  moiety  of  a  house  held  by  the  plain- 
tiff, under  a  demise,  at  140/.  a  year,  payable  quarterly. 

To  each  of  these  cognizances  the  plaintiff  pleaded  no7i  teniiit;  riens 
in  arriere;  and  that  defendant  was  not  bailifl". 

At  the  trial  before  Best  C.  J.,  Middlesex  sittings,  after  Trinity  term 
last,  it  appeared  that  the  plaintiff  held  the  premises  under  a  lease  execut- 
ed by  Henry  Marchant,  the  elder,  Samuel  Cullum,  and  Stephen  Cullum, 
described  as  surviving  trustees  under  the  will  of  John  Cullum;  that  the 
warrant  of  distress  w.js  signed  by  Henry  Marchant,  theelder,  alone, and 
autiioriscd  a  seizure  for  2  1/.  IO9.  only;  and  that  Samuel  Cullum  being 
applied  to,  to  authorize  the  distress,  declined  to  do  so,  or  to  adopt  it  af- 
terwards. 

A  verdict  was  thereupon  taken  for  the  pl.iintiff,  with  leave  for  the  de- 
fendant to  move  to  set  aside,  and  enter  a  verdict  for  the  defendant  in- 
stead; accordingly, 

Storks  Serjt.  Iiaving  obtained  a  rule  ul.si  to  that  effect,  on  the  ground 
that  one  joint-tenant  may  distrain,  and  tliat  if  he  does  so,  he  is  compelled 
to  avow,  pursuant  to  tlie  terms  of  the  lease  by  which  the  premises  are 
held; 

Jfi/deSarjl.  now  shewed  cause.  He  cited  Leis^h  v.  Shepherd,  2  B. 
&  B.  465;  Pii/len  v.  Palmer,  5  Mod.  72;   Year  Hook,  7  H.  4.  34.  pi.  1. 

Storks  contra,  referred  to  Leigh  v.  Shepherd;  Year  Hook,  15  H.  7. 
17  a. 

Best  C.  J.  I  had  considered  at  first  that  there  was  an  express  dissent 
by  Cullum  to  this  distress;  I  cannot  now  collect  that  such  was  the  casCf 
and  it  is,  therefore,  unnecessary  to  decide  what  would  have  been  the  ef- 
fect of  such  a  dissent. 

VOL.    XV.  10 


74  MuRiMiY  i'.  Bell.  E.  T.  1828. 

CuUiim  said  lie  declined  autlioriziiii^  this  distress:  this  docs  not  amount 
to  a  dissent;  and  he,  consc(jiienlly,  left  l)is  co-tenant  in  the  same  situa- 
tion as  tlie  co-tenant  stooil  in  Leif^h  v.  Shepherd;  to  the  decision  in 
which  case  I  entirely  subscribe.  The  rule,  therefore,  must  be  made  ab- 
solute. 

Park  J.  1  am  of  the  same  opinion,  and  agree  with  the  decision  in 
Leigh  V.  Shepherd.  That  is  an  authority  to  shew  that  the  assent  of  the 
co-tenant  is  not  necessary,  and  there  has  been  no  express  dissent  here. 

BuRROUGH  J.  One  joint-tenant  may  recover  the  whole  rent,  and  give 
a  discharge  for  it;  he  may,  therefore,  distrain,  and  he  must  avow  accord- 
ing to  the  title.  There  is  no  colour  for  saying  that  there  was  any  dissent 
here. 

Gasei.ee  J.  If  the  distress  had  been  made  by  Marchant,  there  could 
liave  been  no  doubt;  but  if  JSIarchant  has  authority  to  distrain  for  him- 
self and  others,  it  comes  to  the  same  thing  whether  he  distrains  by  him- 
self or  by  a  bailiff. 

Rule  absolute. 


ANDREWS  V.  DALLY.— p.  566. 

Where  the  expenses  of  passing  an  act  of  parliament  are  directed  by  the  act  to  be 
defrayed  out  of  certain  tolls  to  be  levied  under  the  act,  it  is  incumbent  on  the 
party  who  sues  for  the  expense  of  soliciting  the  act,  to  shew  that  tolls  have 
been  collected  sufficient  to  cover  his  demand. 


MURPHY  and  Another  v.  BELL.— p.  567. 

A  policy  of  insurance  stipulated,  "  that  the  goods  insured  were  and  should  be 
valued  at  five  tierces  coffee,  valued  at  27/.  per  tierce,  say  135/.;  that  policy  to 
be  deemed  sufficient  proof  of  interest :" 

Held,  that  the  policy  was  void  under  19  G.  2.  c.  37. 

Assumpsit  on  a  policy  of  insurance.  The  declaration  alleged  that 
the  plaintiffs  by  the  names  and  description  J.  and  E.  Murphy,  or  as 
agents,  as  well  in  their  own  names  as  for  and  in  the  name  and  names  of 
all  and  every  other  person  or  persons  to  whom  the  same  did,  might,  or 
should  appertain  in  part  or  in  all,  did  make  assurance  and  cause  them- 
selves ancl  them  and  every  of  them  to  be  insured,  lost  or  not  lost,  at  and 
from  London  to  Cork,  including  the  risk  in  craft  to  and  from  the  ves- 
sel, upon  any  kind  of  goods  and  merchandizes,  and  also  upon  the  body, 
tackle,  apparel,  ordnance,  munition,  artillery,  boat  and  other  furniture 
of  and  in  the  good  ship  or  vessel  called  the  Zephyr.  The  said  ship,  &c., 
goods  and  merchandizes,  &c.,  for  so  much  as  concerned  the  assured,  by 
agreement  between  the  assured  and  assurers  in  that  policy  were  and 
should  be  valued  at  five  tierces  coffee,  valued  at  27/.  per  tierce,  say 
135/.:   "  That  policy  to  be  deemed  sufficient  proof  of  interest." 

At  the  trial  before  Best  C.  J.  London  sittings  after  Easter  term  1827, 
a  verdict  having  been  found  f)r  the  plaintiff  in  respect  of  a  loss  wilhin 
the  terms  of  the  policy, 


4  Bingham,  567.  75 

IVilJe  Scrjt.  in  Trinity  term  last  obtained  a  rule  nisi  to  arrest  the 
judgment,  on  the  ground  that  the  policy  described  in  the  declaration 
was  void,  the  statute  19  G.  2.  c.  37.  s.  1.  having  enacted  that  no  assur- 
ance shall  be  made  on  any  ship  or  on  any  goods  to  be  taken  on  board  of 
such  ship,  "  interest  or  no  interest,  or  without  further  proof  of  interest 
than  the  policy,  or  by  way  of  gaming  or  wagering,  or  without  benefit 
of  salvage  to  the  assurer." 

Taddy  Serjt  this  term  shewed   cause,  and  cited  Grant  v.  Parkin- 

son,  Park  on  Ins.  302;  Da  Cos  la  v.  Firth,  4  Burr.  1966j  the  statute 

of  19  G.  2.  c.  37. 

fVildc,  contra.  ry  j  i. 

Cur.  adv.  vult. 

Best  C.  J.  In  the  argument  of  plaintiff's  counsel  it  has  been  assum- 
ed that  the  sole  object  of  tlic  19  G.  2.  was  to  prevent  gaming  under  the 
pretence  of  insuring  against  the  perils  incident  to  navigation.  On  this 
assumption  he  has  insisted  that  if  it  appears  that  a  policy  is  not  a  gaming 
policy,  and  the  precise  words  specified  in  the  act  are  not  used,  the  case 
is  not  within  the  statute.  The  preamble  of  the  act  shews  that  gaming 
was  the  least  of  the  evils  that  the  legislature  proposed  to  remed3\  Ad- 
ventures on  which  gambling  policies  might  be  made,  but  which  were 
not  likely  to  be  undertaken  for  the  other  purposes  which  it  was  the  ob- 
ject of  the  statute  to  prevent,  are  exempted  from  its  operation.  The  pre- 
amble states  that  policies  of  insurance  with  clauses  of  interest  or  no  in- 
terest, or  such  as  in  case  of  loss  made  the  policies  sufficient  proof  of 
interest,  were  used  to  protect  persons  who  were  carrying  on  illegal 
traffic,  and  were  made  the  means  of  profiting  by  the  wilful  destruction 
and  capture  of  ships.  Privateers,  which  carried  no  cargoes,  and  the 
crews  of  which  were  composed  of  more  persons  than  it  was  safe  to  trust 
with  the  secret  that  the  ships  were  to  be  wilfully  destroyed  orpurposelv 
exposed  to  capture;  ships  going  to  the  territories  of  Sj)ain  or  Portugal, 
which  were  not  likely  to  export  wool  (the  exportation  of  which  was  in 
George  the  Second's  reign  the  thing  most  dreaded  by  politicians,)  or 
any  other  raw  materials;  or  to  import  any  articles  that  could  interfere 
with  the  monopoly  of  British  manufacturers;  are  exempted  from  the 
opemtion  of  the  act.  I'his  shews  that  gainbling  was  not  the  only  thing 
guarded  against. 

If  a  policy  contains  words  to  the  same  effect  as  those  enumerated  ia 
the  act,  the  case  is  within  it,  although  it  may  be  manifest  that  it  is  not 
a  gaming  insurance.  The  temptation  to  fraudulent  insurances  is  very 
great;  the  object  to  be  attained  by  them  is  often  easily  accomplished; 
and  the  consequences  to  that  most  valuable  class  of  men,  undiTwritcrs, 
and  seamen,  whose  lives  are  often  put  in  hazard  owing  to  such  insur- 
ances, are  dreadful.  The  case  of  the  Kim^  v.  Cndlinir  and  Easterbi/ 
and  M^ Farhtnr.f  2  Russell  on  ('rimes,  173S,  in  which  I  was  counsel 
for  two  of  the  [jrisoners,  and  others  that  have  been  l)rought  before  tho 
courts  of  justice,  prove  that  such  frauds  are  committed.  We  cannot  too 
strongly  inforce  all  the  provisions  of  this  statute.  If  we  held  that  un- 
less the  words  recited  in  the  statute  are  introduced  into  policies,  and 
they  are  not  gaming  policies,  thr-y  are  valid,  we  shall  rend(;r  inopera- 
tive its  provisions  against  fraudulent  insurances  and  such  as  encourage 
rinndestine  trade.  The  art  does  not  say  that  poIici(,s  conluining  certain 
tipccified  words  shall  be  void,  but  that  '-no  insuranrc  shall  be  made,  in- 


76  Murphy  v.  Bell.  E.  T.  1828. 

tercst  or  no  interest,  or  without  furtlier  proof  of  interest  than  the  poli- 
cy." The  ineaiiinp;  of  this  chuisc  is,  that  no  insurance  shall  be  effected 
by  a  policy  so  worded  as  to  entitle  the  assured  to  recover  against  the 
underwriters  a  certain  stipulated  sum  of  money,  whether  he  had  any 
interest  in  the  ship  or  cargo  or  not,  or  that  binds  the  underwriter  not 
to  require  any  other  proof  of  the  assured's  interest  but  the  admission  of 
such  interest  in  the  policy.  Whatever  words  may  be  used,  if  that  be 
liie  effect  of  the  policy  no  action  can  be  maintained  on  it.  This  is  the 
only  construction  that  will  restrain  the  practices  intended  by  this  act  to 
be  prevented,  and  which  is  according  to  the  import  of  the  words  used 
by  the  legislature. 

It  was  tiiought  at  one  time  that  all  valued  policies  were  within  the 
act,  and  when  one  considers  that  frauds  by  the  loss  of  ships,  may  be  ac- 
complished by  means  of  policies  in  which  a  higher  value  is  put  on  arti- 
cles insured  than  they  are  worth,  there  was  reason  for  thinking  so. 
But  the  case  of  Leiols  v.  Ritcker,  2  Burr.  1167,  has  determined  that 
policies  only  covering  the  prime  cost  of  the  goods  are  valid.  In  the 
case  of  Grant  v.  Parkinso7i,  the  policy  declared,  "  that  in  case  of  loss 
the  profits  should  be  valued  at  1000/.  without  any  other  valuation  than 
the  policy."  Lord  Mansfield  at  llrst  thought  that  policy  was  void. 
On  further  consideration  his  Lordship  said,  '*  it  is  incumbent  on  the 
plaintiff  to  prove  some  interest  :  the  meaning  of  the  policy  is  not  to 
evade  the  act  of  parliament,  but  to  avoid  the  difficulty  of  going  into  an 
exact  account  of  the  quantum.  I  cannot  distinguish  it  from  a  valued 
policy." 

If  a  policy  then  dispenses  with  all  proof  of  interest,  it  is  within  the 
act,  and  void.  If  the  plaintiff  must  prove  his  interest,  and  the  policy 
only  saves  him  the  trouble  of  shewing  its  amount,  it  is  a  valued  policy 
and  good.  Let  us  try  the  validity  of  the  policy  on  which  this  action  is 
brought  by  this  test:  "  goods  and  merchandizes  for  so  much  as  concerned 
the  assured  and  assurers  were  and  should  be  valued  at  5  tierces  coffee, 
valued  at  27/.  per  tierce,  say  135/.  That  policy  to  be  deemed  sufficient 
proof  of  interest."  This  is  a  full  admission  of  all  the  assured  would  be 
required  to  prove,  as  well,  as  to  his  having  goods  on  board,  as  to  the 
value  of  those  goods.  The  words,  "should  be  valued  at  five  tierces  of 
coffee,"  admit  that  five  tierces  of  coffee  belonging  to  the  plaintiff  were 
on  board.  That  would  dispense  with  the  necessity  of  proving  that  any 
coffee  belonging  to  the  plaintiff  was  on  board.  The  words,  "  that  policy 
to  be  deemed  sufficient  proof  of  interest,"  are  of  precisely  the  same  im- 
port as  the  words,  "  without  further  proof  of  interest  than  the  policy." 
As  no  inquiry  is  to  be  made  whether  the  assured  had  any  property  in 
the  ship  insured  or  not,  it  is,  in  effect,  an  insurance  interest  or  no  inte- 
rest.    We  are  of  opinion  that  the  judgment  must  be  arrested. 

Ju  Igment  arrested  accordingly. 


WADS  WORTH  V.  GIBSON.— p.  572. 
Bail  in  error  not  dispensed  with  where  the  error,  thuugh  real,  is  only  of  form, 


4  Bingham,  573.  77 

DAVIES  and  Another,  Assignees  of  HOW,  a  Bankrupt,  v.  WIL- 
KINSON.—p.  573. 

Defendant,  an  insurance  broker,  being  sued  for  pren:iiums  received  by  him  on 
policies  subscribed  by  the  plaintiff,  was  allowed  to  set  oflf  a  loss  on  one  of  those 
policies  effected  in  the  name  of  the  defendant  at  the  request  of  T.,  on  goods  in 
wliich  T.  was  interested,  but  on  which  the  defendant  had  a  lien  to  a  greater 
amount  than  the  set-off  claimed. 

Action  to  recover  the  amount  of  premiums  received  by  the  defen- 
dant as  broker,  in  respect  of  certain  policies  of  insurance  subscribed  by 
the  bankrupt. 

At  the  trial  before  Best  C.  J.,  London  sittings  after  Trinity  term  last, 
the  defendant  claimed  a  set-off  to  a  greater  amount  in  respect  of  a  loss 
due  from  the  bankrupt  on  his  subscription  to  a  policy  effected  by  and 
in  the  name  of  the  defendant,  at  the  request  of  Thompson  and  Co.  of 
Leeds,  on  goods  in  which  Thompson  and  Co.  were  interested,  but  on 
which  the  defendant  had  a  lien  in  respect  of  a  debt  due  to  him  from 
Thompson  and  Co.  for  premiums  to  a  greater  amount  than  the  set-off 
claimed. 

A  verdict  was  found  for  the  plaintiff  subject  to  the  opinion  of  the 
Court,  whether  the  defendant  could  insist  on  this  set-off,  Thompson 
and  Co.  being  interested  in  the  goods  insured,  and  having  ordered  the 
insurance  to  be  effected. 

fVilde  Serjt.  having  accordingly  obtained  a  rule  nisi  to  set  aside  this 
verdict,  on  the  ground  that  the  defendant  might  have  sued  the  bankrupt 
in  respect  of  the  loss,  the  policy  on  which  it  arose  having  been  effected 
in  the  defendant's  name;  and  that  he  was  therefore  entitled  to  set  off  a 
debt  he  might  have  recovered  against  the  bankrupt  by  action, 

Taddy  and  E.  Lawes  Serjts.  shewed  cause,  and  referred  to  Kosfer 
v.  Euson,  2  M.  &  S.  112;  Parker  v.  Beasleiy,  2  M.  &  S.  423;  Gold- 
smith  V.  Lyon,  4  Taunt.  534;  Minett  v.  Foresler,  4  Taunt.  511. 

Wilde,  contra,  was  stopped  by  tbe  Court, 

Best  C.  J.  I  think  this  case  falls  within  the  principle  laid  down  in 
Parker  V.  Bcasley.  Tlic  facts  areas  follows: — Tlic  bankrupt  subscribes 
a  policy  to  the  defendant,  upon  which  a  loss  has  been  incurred.  The 
defendant  is  indebted  to  the  bankrupt  for  premiums.  But  though  the 
defcnrlant's  name  was  on  the  policy  subscribed  by  the  bankrupt,  the 
goods  insured  belonged  to  Thompson  and  Co.;  and  it  has  l)cen  con- 
tended tbat  the  defendant  cannot  set  off  tbe  amount  of  the  loss,  because 
he  is  not  interested  in  the  goods.  But  he  might  have  sued  the  bank- 
rupt on  tlie  policy,  and  though  the  goods  were  not  his,  he  had  a  lien  on 
them,  for  Thompson  and  Co.  were  indebted  to  him  for  premiums  be- 
yond the  value  of  the  goods.  In  Parker  v.  Bcasley,  there  was  no  del 
credere  commission,  but  the  broker  had  a  lien  on  the  goods  insured, 
and  the  principle  on  which  the  decision  turned,  was,  that  the  broker's 
name  being  on  the  policy,  he  had  a  right  to  sue  the  luidervvriter;  and 
that  where  a  party  has  a  right  to  sue  on  the  policy,  and  has  a  lien  oti 
the  goods  insured,  he  may  set  off  in  an  action  for  premiums,  the  sum  to 
be  recovered  for  the  loss.  The  present  defendant  stands  in  the  same 
situation;  he  had  a  light  to  sue  on  the  policy  subscribed  by  the  bank- 
rupt, and  a  lien  on  the  goods  insured;  and  it  would  be  strange  to  say 


78  Davils  v.  Wilkinson.  E.  T.  1828. 

that  he  niiu;ht  sue  the  bankrupt,  and  yet  not  set  off  the  debt  to  be  reco- 
vered in  such  suit.  Thompson  can  never  claim  on  tlie  policy,  because 
he  must  first  discharge  liis  debt  to  the  defendant,  and  he  cannot  do  that 
without  giving  creilit  for  the  sum  charged  by  the  defendant  in  respect 
of  this  loss.  Lord  McDisfield  says,  that  the  doctrine  of  set-off,  as  con- 
sisting with  equity,  ought  to  be  carried  as  far  as  it  can.  Minett  v.  Fo- 
rester does  not  touch  the  present  case,  because  the  material  fact  on 
which  our  decision  rests,  is  not  to  be  found  there;  it  no  where  appear- 
ing that  the  policy,  the  loss  on  which  it  was  proposed  to  set  off,  was 
effected  in  the  name  of  the  party  who  claimed  the  set-off.  But  inde- 
pendently of  the  decisions,  looking  at  the  statute  of  Geo.  2., — the  right 
of  the  broker  to  sue  on  the  policy  subscribed  by  the  bankrupt, — and  his 
lien  on  the  goods  insured, — wc  think  him  clearly  entitled  to  the  set-off 
he  claims. 

Park  J.  Whether  on  the  justice  of  the  case  or  on  principle,  this  rule 
ought  clearly  to  be  made  absolute.  The  cases  have  proceeded  by  de- 
grees, and  Koster  v.  Eason,  and  Parker  v.  Beasley,  warrant  the 
Court  in  the  decision  they  now  pronounce. 

In  Koster  v.  Eason  the  broker  had  a  del  credere  commission,  and 
the  Court  thought  he  was  entitled  to  set  off  a  loss  on  a  policy  effected  in 
his  own  name.  In  Parker  v.  Beasley  I  took  unsuccessfully  the  dis- 
tinction which  my  brother  Taddy  has  taken  to-day,  but  the  Court 
tiiought  the  princi])le  tlic  same  whether  the  broker  acted  under  a  del 
credere  commission  or  not. 

In  the  present  case  there  was  no  del  credere  commission,  but  the 
policy  was  efl'ected  in  the  name  of  the  broker,  who  might  have  sued  the 
underwriter  upon  it;  he  had  a  lien  upon  the  goods  insured,  and  the 
owner  of  them  could  not  recover  without  allowing  the  broker  credit  for 
the  amount.  The  same  argument  was  raised  in  Koster  v.  Eason,  but 
Lord  Elleiiboroiigh  said,  "another  answer  to  the  claim  as  to  the  ten 
policies  is  this,  that  it  does  not  appear  that  the  house  of  Eason  and  Co. 
iiave  paid  their  principals,  though  they  have  given  them  credit  for  these 
losses  and  returns;  and  if  they  have  not  paid  tliem,  the  allowance  of  this 
claim  may  either  interfere  with  the  rights  of  such  principals,  or  may 
leave  Swan's  estate  exposed  to  a  further  claim  from  those  principals. 
Suppose  the  house  of  Eason  and  Co.  to  become  insolvent  and  unable  to 
satisfy  their  guarantees,  if  the  allowance  of  this  set-off  were  to  take  away 
from  the  principals  the  right  of  claiming  upon  Swan's  estate,  it  would  be 
doing clearinjusticetothcprincipalsjwhooughtto  have  the  power  of  look- 
ing to  Swan  as  their  principal  debtor,  as  well  as  to  Eason  and  Co.,  the 
guarantees  for  his  solvency ;  and  if  the  allowance  of  this  set-ofl  were  not  to 
take  away  from  tlie  principals  the  right  of  claiming  upon  Swan's  estate, 
it  would  be  great  injustice  to  Swan's  estate,  because  in  that  case  it  would 
be  liable  to  pay  the  principals  a  dividend,  after  having  made  Eason  and 
Co.  a  payment  to  the  extent  of  the  whole  demand."  The  cd.sc.oi  Parker 
V.  Beasley  was  that  of  brokers  who  had  effected  policies  on  goods  in 
their  own  names,  on  account  of  their  principal,  and  had  accepted  bills  on 
account  of  tJie  goods,  so  that  tliey  had  only  a  lien  to  that  extent,  and  yet 
the  Court  held  it  sufficient,  and  decided  on  the  distinction  which  sup- 
ports tlie  principle  on  which  we  now  determine.  Le  Blanc  J.  said, 
''the  case  of  Koster  v.  Euson  established  this,  that  where' the  broker 
himself  is  a  party  to  the  cunlracl,  so  as  to  enable  him  to  maintain  an  ac- 


4  Bingham,  573.  79 

tion  in  his  own  name,  if  he  has  acquired  an  interest  by  a  del  credere 
commission,  he  is  entitled  to  a  set-oiV.  It  i^^  the  same  thing  if  he  ac- 
quires an  interest  by  advancing  on  the  credit  of  the  consignment.''  The 
defendant  here  has  an  interest  by  lien,  and  a  right  to  sue  on  the  policy. 
BuRRouGH  and  Gazelee  Js.  concurring,  the  rule  was  made 

Absolute. 


MACBEATH  v.  ELLIS  and  Two  Others.— p.  578. 

Where  a  party  is  detained  in  custody  for  a  judgment-debt,  the  attorney  who  was 
concerned  in  the  cause  for  one  of  the  detaining  creditors,  cannot,  without  a 
power  for  the  purpose,  sign  for  him  the  note  for  six-pences. 


BARTRAM  v.  FAREBROTHER.— p.  579. 

P.,  to  whom  goods  were  consigned,  said,  on  their  arrival  at  a  wharfinger's,  that 
he  would  not  have  them,  and  directed  an  attorney  to  do  what  was  necessary  to 
stop  them.  The  attorney,  on  the  3d  of  November,  gave  the  wharfinger  an  or- 
der not  to  deliver  them  to  the  consignee,  which  order  the  consignor  wrote  to 
confirm  on  the  6th;  on  the  Tth  the  goods  were  claimed  under  an  execution  at 
the  suit  of  A.: 

Held,  that  the  contract  between  P.  and  the  consignor  was  rescinded;  that  the 
transitus  was  not  ended  by  the  arrival  of  the  goods  at  the  wharf  and  the  order 
given  by  P.;  and  that  the  consignor  had  a  right  to  stop  in  transitu. 

Trover  for  thirty-eight  hogsheads  of  ale.  At  the  trial  of  the  cause 
before  Best  C.  J.,  London  sittings  after  Trinity  term  last,  the  facts  ap- 
peared to  be  as  follows: — 

Mungo  Park  had  ordered  ale  of  the  plaintiff  at  Edinburgh,  the  invoice 
of  which  reached  Park  on  the  29th  October  1S2G,  when,  being  in  insol- 
vent circumstances,  he  signified  to  his  clerk  that  he  would  rot  have  the 
ale,  and  desired  him  to  direct  Vincent,  an  attorney,  to  do  what  was  ne- 
cessary to  stop  the  goods. 

November  2d,  twenty-five  hogsheads  arrived,  and  on  the  3d,  Vincent 
wrote  a  notice  to  the  wharfinger,  at  whose  wharf  they  were  to  be  landed, 
not  to  deliver  the  ales  to  the  consignee. 

On  the  4th,  thirteen  more  hogsheads  arrived;  and  on  the  (Jlh  the 
whole  were  landed  on  the  wharf. 

On  the  same  day  the  plainlilT's  agent  wrote  from  Edinburgh  to  the 
wharfinger,  confirming  the  order  not  to  deliver  the  ales  to  the  consignee. 

On  the  7th,  Vincent  sent  the  wharfinger  another  notice  not  to  deliver 
any  of  the  consignment. 

On  the  same  day,  the  defendant,  sheritTof  London,  claimed  the  goods 
under  an  execution  issucfl  again-it  Mungo  Park,  by  Adam  Park,  his 
uncle,  and  left  the  warrant  for  seizure. 

On  the  11  th,  another  agent  of  the  plaintiff  dcmandod  the  whole,  and 

On  the  13lh,  the  defendant,  the  slieriff,  removed  llic  ales  under  the 
execution. 

A  verdict  having  been  given  for  the  pliintifT, 

Wilde  Serjt.  moved   to  set   it  asidr,   and  enter  a  nonsuit  instead,  on 


80  Baktram  v.  Fahkurother.  E.  T.  1828. 

the  ground  that  Miingo  Park  had  never  rescinded  his  contract  with  the 
])laintitV,  but  had  merely  endeavoured  to  stop  the  goods  121  transitu, 
wliii'h  was  not  eirectually  done;  first,  because  the  transit  was  at  an  end; 
and  secondly,  because  Vincent  was  not  the  agent  of  the  plaintifl",  the 
consignor,  who  alone  had  the  power  to  stop,  but  of  Park,  the  consignee. 
A  rule  nisi  was  granted,  and 

Cross  Scrjt.  shewed  cause,  contending  that  the  contract  was  rescinded 
by  Park's  saying  he  would  not  have  the  goods,  and  the  plaintifl"'s  as- 
senting  to  the  stoppngc  ordered  by  Vincent;  which  assent,  by  ratifica- 
tion, made  Vincent  his  agent  for  that  purpose.  He  relied  on  Suite  v. 
Field,  5  T.  R.  211,  and  ^^tkin  v.  Barwick,  1  Str.  165. 

The  Court  here  called  on 

JVilde  to  support  his  rule,  who  cited  Richardson  v.  Goss,  3  li.  &  P. 
127;  N'edte  v.  Ball,  2  East,  123;  Smith  v.  Field,  5  T.  R.  404;  Barnes 
V.  Freeland,  6  T.  R.  SI. 

Best  C.  J.     This  is  an  action  against  the  sheriff,  for  taking  in  execu- 
tion certain  goods  as  the  goods  of  Mungo  Park,  at  the  suit  of  one  of  M. 
Park's  family.   Now,  when  can  an  execution  creditor  take  goods  which 
his  debtor  has  purchased?     When  the  contract  between  the  vendor  and 
vendee  is  complete.      If  the  contract  be  only  suspended,  that  is  enough 
to  prevent  the  execution  creditor  from  taking.     V>\xi  the  contract  here 
was  altogether  put  an  end  to.      The  goods  had  been  sold  by  a  person  in 
Scotland.      On  the  3d  of  November  the  vendee  says,  "  I  decline  having 
them;"  he  then  proceeds  to  effect  his  repudiation  of  the  contract  in  a 
clumsy  way,  by  telling  his  clerk  to  order  Vincent  to  stop  the  goods; 
but  what  he  proposed  and  intended  was,to  get  rid  of  the  contract.  This  pro- 
posal, however,  unless  assented  to  by  the  vendor,  would  not  have  suf- 
ficed for  the  purpose  ;  but  notice  was  given  to  the  wharfinger  on  the 
3d,  and  on  the  Gth,  one  day  before  the  goods  were  claimed  in  execu- 
tion, the  vendor  agreed  to  the  proposal.   It  has  been  asked,  what  would 
have  been  the    consequence  if  the  vendee  had  revoked  his  order  to 
stop  the  goods?     But  it  is  sufficient  for  the  present  case  to  say  that  it 
was  not  revoked,  and  that  on   the  3d  of  November  there  was  a    clear 
intention  to  put  an  end  to  the  contract.      Now,  without  referring  to 
cases,  it  is  perfectly  clear,  that  till  the  rights  of  third  persons  have  in- 
tervened, contracting  parties  have  a  right  to  rescind  a  contract,  and 
here,  at  the  time  the  contract  was  rescinded,  no  such  rights  had  inter- 
vened.    But  the  point  has  been  decided  in  Jltkin  v.  Barwick.     I  do 
not  go  the  whole  length  of  the  positions  laid  down  in  that  case  ;  it  is 
sufficient,  however,  if  we  should  have  decided  in  the  same  way,  though 
not  entirely  for  the  same  reasons.     That  was  a  case  of  bankruptcy,  and 
it  should  be  said  for  Pratt  C.  J.,  that  the  doctrine  touching  matters 
done  in  contemplation  of  bankruptcy,  was  subsequently  introduced  into 
Westminster  Hall.     The  case,  however,  was  confirmed  by  Salte  v. 
Field,  where  the  property  of  goods  bought  by  an  agent  for  the  vendee, 
and  delivered  by  him  to  the  vendee's  packer,  in  whose  hands  they  were 
attached  by  the  vendee's  creditors,  was  held  to  revest  in  the  vendor,  so 
as  to  avoid  the  attachment,  by  the  vendee's  having  countermanded  the 
purchase  by  letter  to  his  agent,  dated  before  such  delivery,  though  not 
received  till  afterwards,  the  vendor  assenting  to  take  back  the  goods. 

That  case  was  not  decided  on  the  ground  that  no  contract  had  existed. 
Lord  Kenyan  says,  '*It  was  in  the  power  of  the  buyer  and  seller  to  put 


4  Bingham,  579.  81 

an  end  to  the  contract  as  if  it  liad  never  existed;  and  it  is  staled  that  the 
proposition  made  hy  the  purchaser  to  rescind  llic  contract  was  acceded  to 
bj'  the  sellers.''  That  shews  that  the  principle  was,  not  that  no  contract 
had  existed,  but  that  a  contract  had  been  rescinded.  Salle  v.  Field 
was  recognised  in  Smilh  v.  Field,  where  the  decision  was  different,  be- 
cause the  rights  of  third  parties  had  intervened;  but  Lord  Kenyan  took 
care  not  to  impugn  the  princij)le  established  in  *S>///e  v.  7'Ve/f/,  saying, 
*'  In  the  former  case  of  Salle  v.  Field,  the  Court  went  as  far  as  the}'' 
could  to  assist  the  sellers;  but  there  both  the  buyer  and  seller  agreed  to 
rescind  the  contract  before  the  bankruptcy.'"  Each  of  the  Judges  con- 
firmed the  decision  in  that  case,  and  also  in  Alkin  v.  Bariuick.  jBanics 
V.  Freeland  does  not  shake  the  authority  of  the  previous  cases.  Lord 
Kenyan  says,  "  I  cannot  distinguish  the  present  case  from  that  of  Har- 
man  v.  Fishej'  on  principle;  for  this  bankrupt  knew  his  insolvent  situa- 
tion at  the  time  when  he  wislied  to  deliver  back  t!ie  goods  in  question  to 
the  defendant,  as  well  as  Ford3ce  did  in  that  case;  there,  Fordyce,  find- 
ing that  he  was  insolvent,  was  anxious  to  repay  to  the  defendant  some 
bills  which  the  latter  had  lent  him;  and  though  those  bills  were  as  easily 
distinguishable  from  the  rest  of  his  effects  as  the  iron  in  question  was 
from  tlie  rest  of  this  bankrupt's  property,  the  Court  there  held,  that  it 
could  not  be  done,  because  it  would  prejudice  the  other  creditors  of  the 
bankrupt.  Three  cases,  however,  have  been  cited  and  pressed  upon  us, 
as  deciding  the  present;  but  I  think  they  are  to  be  distinguished  from 
this.  In  Jllkin  v.  Barwick  the  vendees,  finding  that  tl^.eir  affairs  were  in 
a  declining  condition,  before  the  goods  arrived  at  their  house,  in  Corn- 
wall, refused  to  accept  the  goods,  and  thereby  refused  to  become  parties 
to  the  contract  of  sale:  and  though,  when  the  goods  did  arrive  by  the 
waggon,  the  vendees  could  not  turn  them  loose  in  the  streets,  yet  they 
did  what  was  tantamount  to  rejecting  them,  they  sent  them  to  a  friend  of 
thoconsignors  for  their  use.  In  Salle  v.  Field,  consider  who  was  the  party 
to  the  contract;  not  the  clerk  of  the  vendee,  who  lived  in  London,  but 
Dewhurst,  who  was  resitling  in  New  York;  and  he,  knowing  his  insol- 
vent situation,  sent  orders  a  month  before  the  transaction  in  dispute  took 
place,  to  his  clerk  here,  not  to  |)urchnse  any  more  goods  for  him.  Tho 
clerk  immediately  on  the  rcfcipt  of  this  order,  applied  to  the  vendors  to 
take  the  goods  back  again,  who  agreed  to  rescind  the  contract."  Barnes 
V.  Freeland  was  decided  on  the  ground  that  the  acts  were  done  in  con- 
templation of  l)ankr!q)tcy;  hut  in  the  present  case  there  having  bcou  no 
bankruj)tcy,  that  j)rinciple  docs  not  apply. 

It  has  been  argued  that  the  goods  in  the  present  case  were  finally  de- 
livered before  the  stojipage  took  effect;  but  it  has  never  been  held  that 
goods  in  the  Ivmds  of  a  carrier  or  wharfinger  have  been  finally  delivered 
except  where  the  wharfinger  has  actually  been  the  agent  of  the  consignee; 
and  those  cases  have  all  turned  on  attempts  to  defi;at  a  gcmeral  body  of 
creditors.  In  the  present  case  the  goods  were  not  in  the  hands  of  tho 
vendee,  nor  were  they  stopped  to  defraud  a  general  body  of  creditors; 
there  is  no  ground  therefore  for  impeaching  the  verdict  which  has  been 
given,  and  the  rule  must  he  discharged. 

Park  J.  Slcjppoge  in  transitu  is  a  right  conferred  on  tnoritorious 
persons,  and  is  not,  as  it  has  Ikoii  argued,  a  hardsliip  on  any  one  ^^'ilh 
regard  to  the  decision  in  ,^lkin  v.  Barwirk,  it  ^vas  sanclioncil   in  liar 

\OI,.   NV.  1 1 


Sli  AXFOUIJ   i'.    1*£1!KKTT,    E.  T.    1828. 

7)iun  V,  Fiaher,  Cuwp.  \.15;  althoLigli  some  of  the  reasoning  in  the  case 
was  not  agreed  to. 

Suite  V.  Field  came  next,  I  argued  the  case,  and  did  not  succeed. 
It  was  determined  that  a  contract  had  hcen  entered  into,  and  that  it  had 
been  rescinded.  In  this  all  the  Judges  concurred.  In  Smith  v.  Field, 
which  followed  shortly  afterwards,  the  Court  recognized  the  decision  in 
Salte  V.  Field,  but  distinguished  Smith  v.  Field  from  it,  because  the 
rights  of  third  parties  liad  accrued  before  the  contract  was  rescinded. 
And  in  Barnes  v.  Freeland  where  the  preceding  cases  were  all  recog- 
nized, tlie  Court  said,  "  The  contract  here  was  not  rescinded  before  the 
insolvency  of  t'ne  vendee.  After  the  contract  for  the  sale  of  the  iron, 
it  was  actually  delivered  to  the  vendee,  and  put  into  his  cellar,  and  he 
gave  a  bill  of  exchange  for  the  pa3Mnent  of  it;  then  the  contract  was  com- 
plete, and  could  not  he  rescinded  by  any  subsequent  act  of  the  parties, 
so  as  to  affect  the  interests  of  third  person."  The  question  seems  to  me 
clear  in  point  of  law,  and  the  rule  must  be  discharged. 

BuRRouGii  J.  The  question  is  clear  in  point  of  fact,  and  that  is  the 
chief  thing  in  cases  like  the  present.  The  goods  were  stopped  before 
they  were  delivered  to  the  vendee. 

G-ASELEE  J.   concurred,  and  the  rule  was 

Discharged. 


AXFOUD  v.  PERRETT.— p.  58G. 

Allowini^  two  years  to  chipse  without  pnH-.ecdins^s,  Ilt^ld  to  be  a  breach  of  the 
condition  in  a  replevin-bond  to  prosecute  the  replevin  without  delay,  and  that 
the  obligee  might  recover  on  such  breach,  although  judgment  oinon-pros  was 
never  bigaed  in  the  county-court. 

Tins  v/as  an  action  on  a  rejjlevin-bond,  for  not  prosecuting  with  efiect 
and  without  delay  the  suit  in  leplevin,  according  to  the  condition  of  the 
bond.  Pleas:  1st,  iion  ent  factmn;  2d,  after  setting  out  the  condition 
on  oyer,  that  defendant  did  prosecute  with  effect  and  without  delay ;  and, 
od,  that  he  did  duly  appear  and  prosecute  according  to  the  condition  of 
the  bond,  and  that  the  suit  was  still  pending.  Replication,  that  the  de- 
I'c-ndant  did  not  prosecute  his  suit  according  to  the  form  and  effect  of  the 
condition  in  the  bond. 

At  the  trial  before  Gas^lec  J.,  last  Salisbury  Spring  assizes,  it  appear- 
ed that  for  more  than  two  years  previous  to  the  commencement  of  this 
action,  the  defendant  had  taken  no  step  in  the  rc])levin  cause;  that 
bhortly  before  the  commencement  of  this  action  he  applied  to  the  county 
clerk  to  enter  continuances  and  proceed  with  the  cause,  which  was  re- 
I'ased,  the  county  clerk  alleging  then,  and  at  the  trial,  that  after  three 
courts  had  elapsed  without  any  ])rocecdings  being  had,  the  cause,  by 
the  practice  of  that  county,  was  out  of  the  court.  For  the  defendant, 
the  predecessor  of  the  county  clerk  stated,  that  during  all  the  time  he 
lield  t!;e  office,  a  cause  was  considered  to  be  in  existence  till  a  von-pros 
was  entered;  and  that,  unless  that  were  done,  continuances  might  be  en- 
tered after  any  lapse  of  time. 

A  verdict  was  taken  for  the  plaintiff,  the  learned  Judge  being  of 
opinion,  that  the  defendant  liad  not  pi-osccuted  the  replevin  suit  \>ithout 
delay. 


4  Bingham,  586.  83 

Wilde  Serjt.  now  moved  to  eet  aside  tliis  verdict,  and,  assuming  that 
tJie  testimony  of  the  older  clerk  of  the  county  was  the  more  worthy  of 
credit,  contended,  that,  according  to  that  testimony,  the  replevin  suit 
was  still  existing;  and  that,  while  a  cause  existed,  according  to  the 
j)raclice  of  the  court  in  which  it  was  pending,  it  could  not  he  said  to  he 
delayed:  he  referred  to  Brackcnburij  v.  Pell,  12  East,  5S5,  where,  to 
an  action  on  a  replevin-bond  conditioned  for  the  defendant  to  prosecute 
his  suit  with  effect,  it  was  held  sufficient  to  plead  that  the  defendant  did 
appear  at  the  next  county  court,  and  prosecute  his  suit,  which  was  still 
dependijig,  and  that  it  was  not  sufficient  to  reply  that  the  defendant 
abandoned  his  suit,  and  that  it  was  not  still  pending,  without  shewing 
also  how  it  was  determined;  and  to  Ehvorthy  v.  Bird,  2  IJingh.  258,  to 
shew  that  a  discontinuance  could  not  take  place  except  by  act  of  the 
Court.     But 

The  Court,  observing  that  the  decision  in  Brachenhvry  v.  Tell  was  on 
special  demurrer  to  the  replication,  and  not  after  a  verdict  which  found 
that  the  tiefendant  had  not  prosecuted  his  suit  according  to  the  effect  of 
the  condition,  held,  that  after  the  time  which  had  elapsed  without  any 
proceedings,  the  replevin  cause,  by  analogy  to  the  practice  of  the  higher 
tribunals,  was  out  of  court,  and  that,  at  all  events,  the  defendant  had  not 
prosecuted  his  suit  without  delay. 

Rule  refused. 


HINT  V.  HI.AQUIERE.— p.  5SS. 

Hail  at.  llie  request  of  the  dcfciuhuit's  attorney,  .idmisbiblc,  if  not  indemnified  by 

him. 


KMGIIT  and  Anollicr  v.  LECJII.— p.  589. 

K.  being  indebted  to  plainlilTs,  ac;recd  to  deposit  with  phnntifTs,  as  agent  to  P.,  «. 
bill  of  exelumgc,  as  security  for  a  sum  advanced  by  1*.;  and  liavinp;  deposited 
the  bill  with  piainiirTs, \vi-otc  to  them  as  follows; — "The  bill  you  will  hold,  sub- 
ject to  P. 's  a/lvance;  and  also  for  any  advances  or  CNpenscs  you  have  against 
me."  The  bill  having  been,  at  the  instance  of  the  acceptor,  surreptitiously 
taken  by  the  defendant,  Held,  that  the  plaintifis  might  sue,  and  recover  against 
him  in  trover,  altlioiigh  1*.  had  pre\  iously  sued  him,  and  had  recovered  by  the 
award  of  an  arbitrator  the  amovnit  of  his  advance. 

Tuis  was  an  action  of  trover,  brought  by  the  plaintifis  against  defen- 
dant, to  recover  damages  for  the  conversion  of  a  bill  of  exchange  by  the 
defendant  to  his  own  use.  At  the  trial  of  the  cause  before  Best  C.  J., 
at  the  sittings  in  London,  after  jMichaelmas  term  182(5,  the  jury  found 
a  verdict  for  the  plainliffs,  for  the  damages  mentioned  in  the  declaration, 
sul)ject  to  the  opinion  of  the  ('oiirt  on  the  following  case: — 

'i'he  bill  of  exchange,  for  the  conversion  of  which  Ihe  action  was 
brjught,  was  iliawn  5lh  N()verid)er  li»2l,  by  one  Thomas  Claughton 
upon  the  dflendanf,  leqiicsling  him,  ciiihlcen  nutnlhs  afterdate,  to  pay 
to  the  saifl  Thomas  (■|aiigliton\s  order  ."jOO/.,  value  received,  which  bill 
>v.is  after  ward  =5,   and  before  il?  nrgoliation,  arcrptcd  by  the  defendant. 


81  Knk.iit  r.  Liit.ii.   E.  T.  1S28. 

The  bill  li;uSiig  I)l'cmi  indwrscd  by  Claughtoii,  he,  on  the  Sth  Decem- 
ber IS-'I,  lU'livcrcil  the  same,  with  other  bills  of  a  like  description,  to 
one  Thoinas  Farquarson,  who,  with  his  consent,  delivered  the  bill  to  one 
John  Everth,  for  the  purpose  of  raising  money  thereon  by  discounting 
or  procuring  a  ileposit  thereon,  and  such  money,  when  raised,  was  to 
be  employed,  partly  in  making  up  the  capita!  of  Evcrlh  in  a  gun-manu- 
lactory  in  which  he  was  interested,  and  for  which  ClaugiUon  engaged  to 
advance  funds  to  a  larger  amount  than  tlie  bill  in  question,  and  partly  for 
other  purposes  of  ClaugiUon,  in  which  Everth  had  no  concern. 

In  the  month  of  February  iSS'li  Evertli  applied  to  the  banking-house 
of  Sir  Peter  Pole  and  Co.,  who  consented  to  advance  to  him  the  sum  of 
1000/,  upon  the  security  of  the  bill;  and  it  was  agreed  between  Everth 
and  the  bankers  that,  inasmuch  as  Everth  had  not  at  that  time  any  ac- 
count at  the  said  banking-house,  the  amount  of  the  said  advance  should  be 
debited  in  the  account  of  plaintiff,  Knight,  kept  by  him  at  tiie  bankers, 
he  being  the  solicitor,  both  of  the  said  bankers  and  of  Everth,  and  that  the 
bill  should  be  deposited  with  the  plaintiif,  Knight,  as  agent  for  the 
bankers,  until  the  sum  of  1000/.  should  be  repaid  by  Everth. 

The  bill  was  accordingly  placed  in  the  hands  of  plaintiff,  Knight,  for 
that  purpose,  and  on  the  29lh  March  the  money  was  advanced. 

On  the  2d  April  1S22,  Everth  addressed  a  letter  as  follows  to  the 
plaintiff  Knight: 

"  The  bill  of  3500/.  drawn  by  Thomas  Claughton  upon  Thomas 
Legh,  of  I^yme  Park,  upon  which  you  were  kind  enough  to  procure 
me  the  advance  of  1000/.  from  Sir  P.  Pole,  ]5art.,  and  Co.,  you  will 
j>lease  to  hold,  subject,  of  course,  to  that  1000/.  as,  also,  for  any  ad- 
vances or  law  expences  you  have  against  me,  or  that  may  be  advanced 
or  incurred  on  my  account,  or  that  of  the  patent  gun-factory,  for  which 
purpose,  more  particularly,  the  bill  was  handed  to  me. 

"  From  tlic  conversation  which  took  place  with  Mr.  Claughton,  on 
Sunday  last,  I  sh.ould  not  be  surprised  if  proceedings  should  be  institu- 
ted by  that  gentleman  against  my  friend  JMr.  Farquarson,  his  former 
agent,  against  whom  he  appears  to  be  much  irritated,  v/ithout,  as  far  as 
1  can  see,  any  adequate  cause:  and  in  that  event  he  necessarily  must  re- 
quire some  professional  assistance,  and,  as  I  know  from  experience,  he 
cannot  be  in  more  able  hands  than  yours,  I  shall  feel 'obliged  by  your 
acting  as  his  solicitors,  and  I  will  engage  to  pay  all  the  expences  you 
may  incur  on  his  account,  arising  out  of  such  proceedings,  for  which, 
also,  you  will  hold  the  bill  as  your  security." 

Prior  to,  and  at  the  date  of  this  letter,  Everth  was  under  acceptances 
U)  a  large  amount,  exceeding  the  amount  of  the  bill  in  (juestion,  of  which 
icceptances  the  plaintiffs  were  aware,  none  of  wiiich  were  ever  paid  by 
Aim,  but  all  afterwai'ds  taken  up  by  defendant  Logh. 

At  the  time  of  the  date  of  the  letter,  the  plalntiirs  were,  and  for  many 
years  previously  had  been,  the  solicitors  for  Everth,  who  was  then  in- 
debted to  them  in  a  considerable  sum  for  professional  business  transact- 
ed on  his  account,  and  became  further  indebted  to  them,  subsequently 
to  the  date  of  the  letter,  both  on  his  own  account,  and,  also,  in  respect 
of  the  gun  factory. 

In  the  jnonth  of  August  liJ22  Everth  applied  to  the  plaintiff  Knight, 
ir.tating  that  a  jjerson  of  the  name  of  Thornhill  could  get  the  bill  discount- 
ed, provided  the  parties  were  .satLsficd  that  the    liand-wriliiig   t)f  the 


4  Bingham,  589.  85 

drawer  and  acceptor  were  genuine,  and  requested  the  plaintili"  Knight 
to  entrust  the  bill  with  Thornhill  to  get  the  same  discounted,  which  the 
plaintiff  Knight,  with  the  approbation  of  Sir  Peter  Pole  and  Co.,  con- 
sented  to  do. 

The  bill  was  afterwards  taken  by  Thornhill's  agent  to  the  banking 
house  of  Coutts  and  Co.,  the  bankers  of  the  defendant,  and  shewn  to  Sir 
Edmund  Antrobus,  one  of  the  partners  of  that  firm,  to  ascertain  whether 
the  acceptance  of  it  was  in  the  hand-writing  of  the  defendant;  whereupon 
one  Sweetman,  who  was  authorised  by  Claughton  to  seize  and  detaia 
the  bill,  asked  Sir  E.  Antrobus  to  let  him  look  at  the  indorsement,  took 
it  out  of  the  hands  of  Sir  E.  Antrobus,  went  away  with  it,  and  by  the 
authority  of  the  defendant  detained  it,  and  the  jury  found  that  defen- 
dant thereby  converted  the  bill  to  his  own  use.  The  said  sum  of  1000/. 
so  advanced  by  Sir  P.  Pole  and  Co.  still  remaining  due  and  unpaid  to 
them,  they,  in  Easter  term  1S24,  brought  an  action  of  trover  against  the 
defendant  and  Claughton  for  the  conversion  of  the  bill  as  aforesaid,  in 
the  Court  of  King's  Bench,  which  cause  being  by  order  of  the  Court 
referred  to  a  barrister,  (a  nol.  pros,  being  first  entered  as  to  Claughton,) 
the  arbitrator  in  November  1825,  found  and  awarded  that  the  defendant 
was  guilty  of  the  premises  laid  to  his  charge  in  the  declaration  in  the 
action  of  Sir  P.  Pole  and  Co.,  and  that  they  had  thereby  sustained 
damages  to  the  amount  of  11S2/.  9.9.  4d.  which  he  awarded  in  respect  of 
the  premises;  and  which  sum  of  money  and  the  costs  were  paid  accord- 
ingly. 

The  arbitrator  in  his  award  recited,  that  on  the  hearing  of  the  arbitra- 
tion, the  plaintiffs  Sir  P.  Pole  and  Co.  proposed  to  produce  before  him 
evidence  to  prove  that  certam  persons,  other  than  themselves,  had  claims 
upon  and  were  interested  in  the  said  bill:  and  that  if  the  same,  when  arriv- 
ed at  maturity  or  afterwards,  had  been  paid  in  full,  part  of  the  money  so 
paid  would  have  been  paid  to  and  for  the  use  of  such  other  persons;  and 
the  arbitrator  further  recited,  that  he  refused  to  receive  such  evidence, 
and  that  he  had  not  awarded  any  damages  against  the  defendant  in  re- 
.spcct  of  the  claims  of  an}'^  persons  other  than  the  plaintiffs  Sir  P.  Polo 
and  Co. 

The  case  was  left  by  the  Chief  Justice  to  the  jury  with  n  direction, 
that  if  they  thought  the  plaintiffs  were  ignorant  of  the  limited  authority 
of  Everth,  and  had  no  reason  to  suspect  it,  they  should  find  for  the  plain- 
tiffs; if  otherwise,  for  the  defendant;  and  llie  jury  found  for  the  plain- 
tiffs. 

The  question  for  the  opinion  of  the  ('ourt  was,  whether  the  plaintiffs 
were  entitled  to  recover  damages  to  the  extent  of  their  lien  upon  the 
bill,  for  the  conversion  thereof  by  the  defendant  as  stated  in  the  case. 

If  the  Court  should  be  of  opinion  that  the  plaintiffs  were  entitled  to 
recover,  the  verdict  was  to  stand;  if  not,  a  nonsuit  was  to  be  entered. 

Wilde  Serjt.,  for  the  plaintiff:^,  cited  Morris  v.  liobinsoti,  3  B.  &  C. 
196. 

Peakc  Serjt,  fijr  the  defciidants. 

Best  C.  .1.  The  plaintills  in  this  case  had  a  general  property  in  the 
bill,  for  the  detention  of  which  they  sought  to  recover  damages,  and  a 
right  to  the  possession  of  it.  The  bill  was  not  in  the  hands  of  Knight 
merely  as  agent  to  Sir  P.  Pole  and  Co. ;  he  held  it  as  his  own  security 
for  a  debt  due  to  him  from  Evcrtb,  fur  professional  services;  and  it  must 


86  Kmgiit  v.  Lech.   L.  ']".  1828. 

1)0  observctl  lliat  the  banking;  house  on  aJvancing  the  lUUO/.  tlid  not 
ilebit  Everlh  with  that  sum,  hut  Knight;  it  was,  tlicreforc,  agreed  tliat 
he  should  hold  it  in  liis  own  right  as  against  Everth,  but  he  had  also  a 
right  to  hold  it  as  against  the  bankers,  hs  a  security  for  the  repayment 
of  the  1000/.  atlvanccd  to  Everth,  in  case  the  bankers  should  have  called 
on  him  (Knight)  to  pay  that  1000/.,  he  being  the  person  debited  by  them. 
However,  sujiposing  Knight  to  have  held  the  bill  merely  asagentof 
the  bankers,  still  he  was  a  lawful  bailee,  and  had  actual  possession,  which 
nould  have  entitled  him  to  support  the  action  as  against  a  wrong-doer. 
Even  if  the  bill  had  been  pledged  to  the  bankers,  the  instant  their  debt  was 
paid.  Knight  held  it  as  a  security  for  his  own  bill  of  costs,  and  that  right 
had  arisen  previously  to  the  commencement  of  this  action.  There  is, 
therefore,  no  objection,  in  point  of  form,  to  his  recovering  in  this  action; 
nor  is  there  any  in  substance,  because  the  bill  was  the  plaintilfs'  secu- 
rity for  the  due  remuneration  of  services  performed.  It  is  objected  that 
they  ought  not  to  recover,  because  Sir  P.  Pole  and  Co.  have  recovered 
already  in  respect  of  the  same  bill.  It  may  be  esteemed  doubtful,  whe- 
ther Sir  P.  Pole  and  Co.  had  any  right  to  sue;  and  whether  the  action, 
even  as  far  as  they  were  concerned,  ought  not  to  have  been  brought 
in  the  name  of  Knight  ;  the  arbitrator,  however,  has  in  that  ac- 
tion properly  limited  the  damages  to  Sir  P.  Pole's  interest  in  the  bill. 
But  supposing  that  they  were  entitled  to  sue,  it  does  not  follow  that  ano- 
ther person,  who  has  a  distinct  claim  in  respect  of  the  same  bill,  may 
not  sue  also.  The  case  referred  to  shews  that  the  same  plaintiff  may 
bring  separate  actions  against  several  parties  in  respect  of  the  same  in- 
jury, where  he  does  not  obtain  adequate  redress  in  the  action  against  the 
party  first  sued;  and  there  seems  to  be  no  reason  why  different  plain- 
lifl's  who  have  different  rights,  should  not  sue  the  same  defendant  in  re- 
spect of  separate  injuries,  though  arising  out  of  one  transaction. 

Park  J.  The  whole  case  turns  on  four  lines  in  Everth's  letter  of 
April  2d.  *<The  bill  of  3500/.  on  which  you  were  kind  enough  to  pro- 
cure me  the  advance  of  1000/.  from  Sir  P.  Pole  and  Co.  you  will  please 
to  hold,  subject  of  course  to  that  1000/.;  as  also  for  any  advances  or  law 
expenses  you  have  against  me,  or  that  may  be  advanced  or  incurred  on 
my  account,  or  that  of  the  patent  gun  factory,  for  which  purpose  more 
particularly  the  bill  was  handed  to  me."  Here  was  the  lien  created, 
and  the  plaintiffs  were  entitled  to  hold  the  bill  till  they  had  obtained  full 
remuneration. 

BuRROUGH  J.  concurred. 

Gaselee  J.  No  doubt  Sir  P,  Pole  and  Co.  were  entitled  to  1000/.  on 
the  security  of  this  bill,  and  the  plaintiffs  were  also  entitled  in  respect 
of  their  advances  and  law  expenses.  Strictly  speaking,  perhaps,  the 
two  actions  were  jiroper,  and  it  must  have  been  immaterial  to  the  defen- 
dant whether  the  first  were  brought  in  the  name  of  Sir  P.  Pole  or  any 
other  person;  if  he  has  to  pay  the  costs  of  two  actions  it  is  his  own 
fault.  The  general  pioperty  in  the  bill,  however,  was  not  in  Sir  P. 
Pole  and  Co.  but  in  the  plaintiffs;  Sir  P.  Pole  and  Co.  had  only  a  spe- 
cial property  in  it.  It  has  been  objected  that  the  j)laintiffs  only  held 
the  bill  as  agents;  but  even  if  that  were  so,  they  were  agents  only  till 
Sir  P.  Pole  and  Co.  were  paid;  when  that  was  done,  they  held  the  bill 
for  Everth,  and  Everth  then  says,  "hold  it  for  yourselves,  to  cover 
your  advances  and  law  expenses;''  that  vested  in  the  plaintiffs  the  gene- 


4  Bingham,  607.  87 

t  must  consequently  be  for 
Judgment  for  the  plaintifl's. 


ral  property  in  the  bill,  and  the  judgment  must  consequently  be  for 
them. 


PRICE  and  Another,  Assignees  of  LATHAM,  a  Bankrupt,  v.  HEL- 

YAR.— 597. 

A  sheriff,  who  takes  in  execution  the  goods  of  a  bankrupt,  is  liable  in  trover  to 
his  assignees,  although  he  has  no  notice  of  the  bankruptcy,  and  a  commission 
has  not  been  sued  out  at  the  time  of  the  execution. 


Ex  parte  Lady  HUTCHINSON,  Conusee.— p.  60G. 
An  afRdavit  of  the  caption  of  a  fine  taken  before  a  consul  abroad,  is  insufficient, 

SIORDET  V.  HALL  and  Others.— p.  607. 

Where  damage  was  done  to  a  cargo  by  water  escaping  through  the  pipe  of  a 
steam-boiler,  in  consequence  of  the  pipe  having  been  cracked  by  frost, — Held, 
that  this  was  not  an  act  of  God,  but  negligence  in  the  captain,  in  filling  his 
boiler  before  the  time  for  heating  it,  although  it  was  the  practice  to  fill  over- 
night when  the  vessel  started  in  the  morning. 

Action  against  the  defendants,  as  carriers  by  water,  for  not  deliver- 
ing a  cargo  in  proper  condition. 

At  the  trial  before  Best  C.  J.,  London  sittings  after  Trinity  term  last, 
the  defence  was,  that  the  mischief  was  done  by  the  act  of  God,  which 
was  one  of  the  risks  excepted  in  the  hill  of  lading.  It  appeared  that 
the  cargo  was  shipped  on  the  10th  February,  and  the  vessel,  a  steam 
vessel,  was  then  tight  and  staunch. 

The  captain  expecting  to  start  the  following  morning,  caused  the  wa- 
ter to  be  pumped  into  the  boiler  on  the  evening  of  the  10th,  as  that  ope- 
ration required  two  hours,  ?nd  the  heating  ai)out  three  more.  For  this 
reason,  it  was  his  practice,  and  the  })raclice  of  steam  vessels  generally, 
when  they  started  in  the  morning,  to  till  the  boiler  the  preceding 
evening. 

The  next  morning  it  was  ascertained  that  the  pipe  which  conducts 
the  water  into  the  boiler  had  cracked,  that  a  considerable  quantity  of 
water  had  escaped  by  this  means  into  the  hold,  and  that  much  of  the 
cargo  was  damaged.  The  pipe  was  a  sound  and  good  onr^,  and  its  burst- 
ing was  occasioncfl  by  the  action  of  frost  on  the  external  |)ortion  of  it. 
The  Chief  Justice  told  the  jury,  that  if  the  water  had  been  unnecessa- 
rily placed  in  the  boiler,  or  considering  the  season  of  the  year,  impro- 
jjerly  left  there  without  heal  to  prevent  the  action  of  frost  upon  the  pipn, 
liic  mischief  was  not  occasioned  by  the  art  of  (lod,  Ixit  bv  gross  ncgli- 
gence. 

The  jury  having  found  for  the  [)l:iinlin', 


88  Batthews  v.  Galinuu.   E.  T.  1828. 

Taddy  Scrjt.  obtained  a  rule  nisi  for  a  new  trial,  on  tiie  ground  of 
an  alleged  misdirection  by  the  learned  Chief  Justice. 

JVilde  Serjt.,  who  was  to  have  shewn  cause,  was  stopped  by  the 
Court,  who  called  on 

Taddy  to  support  his  rule,  who  cited  S^iith  v.  Shepherd,  Abbott 
on  Shipping,  pt.  3.  c.  4.,  4th  edit.  p.  263.  2G9. 

Best  C.  J.  No  one  can  doubt  that  this  loss  was  occasioned  by  ne- 
gligence. It  is  well  known  that  frost  will  rend  iron;  and  if  so,  the  mas- 
ter of  a  vessel  cannot  be  justified  in  keeping  water  within  his  boiler  in 
the  middle  of  winter,  when  frost  may  be  expected.  The  jury  found 
tliat  this  was  negligence,  and  I  agree  in  their  verdict. 

The  rest  of  the  Court  (a)  concurred,  and  the  rule  was 


Discharged. 


(«')  Park  J.  was  at  chambers. 


BENNETT  v.  DAWSON.— p.  609. 

Affidavit,  that  defendant  was  indebted  to  plaintiff  in  20/.,  for  money  lent  on  a  bill 
of  exchange,  drawn  by  S.,  accepted  by  defendant,  and  overdue  and  unpaid  : 
Held,  sufficient,  without  saying  "lent to  defendant." 

The  affidavit  to  hold  to  bail  in  this  case  was,  that  the  defendant  was 
indebted  to  the  plaintiff  in  20/.  lent  on  a  bill  of  exchange  for  37/.  bear- 
ing date  February  6th  1628,  drawn  by  Stracey,  accepted  by  the  defen- 
dant, and  overdue  and  unpaid. 

Lawes  Serjt.  obtained  a  rule  nisi  to  cancel  the  bail-bond,  on  the 
ground  that  the  affidavit  was  defective,  in  not  stating  that  the  money 
was  lent  to  the  defendant,  or  in  what  character  the  plaintiff  claimed;  he 
relied  on  Fenton  v.  Ellis,  6  Taunt.  192;  Humphreys  v.  TVinsloto,  6 
Taunt.  531,  and  Machit  v.  Fraser,  7  Taunt.  171,  as  authorities  to  shew 
that  the  character  in  which  the  plaintiff  claims  must  appear  on  the  affi- 
davit. 

fVilde ^Gr]i.  who  shewed  cause,  relied  on  Bradshaw  v.  SaddingtoUy 
7  East,  94,  where  a  similar  affidavit  was  held  sufficient. 

Best  C.  J.  As  tlie  cases  arc  conflicting,  we  must  follow  common 
sense.  Perjury  might  be  assigned  here,  and  that  is  the  true  principle  to 
go  on.  We,  therefore,  think  the  affidavit  sufficient,  and  the  rule  must 
be  discharged. 

Rule  discharged  accordingly. 


BATTHEWS  v.  GALINDO.— p.  610. 

A  kept  mistress  is  not  incompetent  to  give  evidence  for  her  protector,  although 
slie  lias  passed  by  his  name,  and  has  appeared  in  the  world  as  his  wife. 

Action  on  a  bill  of  exchange.  The  defence  was  usury;  to  prove 
which,  at  the  trial  before  Best  C.  J.  (London  sittings  after  Trinity 
term  last),  the  defendant  called  Ann  Jakers;  to  the  admission  of  whose 


4  Bingham,  610.  89 

tpstimony  UllJe  Serjt.  objected,  that  slie  had  always  heen  held  out  to 
the  world  astlie  wife  of  the  defendant:  as  to  whicli  the  evidence  was, 
that  she  had  lived  in  tlie  same  house  with  him  for  some  years,  passing 
all  the  time  by  his  name;  that  she  had  been  seen  with  him  in  his  bed- 
room, and  also  walking  with  him  in  public;  that  there  were  children  in 
the  house  where  they  residfed,  one  of  whom  the  defendant  frequently 
had  with  him,  and  admitted  to  be  his.  The  witness  stated  that  she  was 
not  the  defendant's  wife,  and  was  permitted  by  the  Court  to  decline  an- 
swering the  question,  to  whom  the  children  in  the  house  belonged. 

The  Chief  Justice,  on  the  authority  of  a  case  on  the  Chester  circuit(«) 
in  1782,  before  Lord  Kenyan,  rejected  the  testimony  of  the  witness, 
thinking  that  a  person  in  her  class  ought  not  to  stand  in  a  higher  situa- 
tion than  a  married  woman,  and  be  invested  with  a  degree  of  credit 
which  the  law  refuses  to  a  wife.  A  \erdict  having  been  obtained  for 
the  plaintiff, 

E.  Laioes  Serjt.  obtained  a  rule  nhi  for  a  new  trial,  on  the  ground 
that  the  testimony  of  this  witness  had  been  improperly  rejected:  the 
rule  for  excluding  the  wife  of  a  party  never  having  been  extended  to 
his  mistress. 

Wilde  Serjt.  shewed  cause,  referring  to  a  case  cited  by  Richards  C. 
B.  in  Campbell  V.  Twemloiu,  1  Price,  SI. 

Park  J.  1  am  clearly  of  opinion  that  this  rule  must  be  made  abso- 
lute. I  agree  in  the  case  cited  from  Price's  Rep.,  but  I  think  it  has  no 
bearing  on  the  present.  Lord  Kenyan  was  right,  because  the  prisoner 
himself  had  called  the  female  his  wife  through  the  whole  trial,  and  Lord 
Kenyan  said  that,  after  that,  he  could  not  call  on  the  Court  to  receive 
her  as  liis  mistress.  ]3ut  the  mere  circumstance  of  a  woiuan's  cohabit- 
ing with  a  man,  tliough  it  goes  to  her  credit,  is  no  ground  for  rejecting 
her  testimony. 

BuHRouGH  J.  It  appears  to  have  been  admitted  throughout  the  trial, 
that  this  woman  was  not  the  wife  of  thedefendant.  If  he  had  been  sued  for 
a  debt  contracted  l)y  her,  he  might  have  shewn  that  she  was  not  his  wife, 
and,  as  to  reputation,  it  cannot  be  spoken  of,  inter  vivas;  it  regards 
only  the  dead.  'J'lic  case  in  Price  has  no  application;  for  the  prisoner 
called  the  woman  his  wife  tliruugh  tlie  whole  of  the  trial,  and  he  could 
not,  upon  the  same  occasion,  be  permitted  to  turn  round  and  say  she 
was  not  his  wife.  I  have  known  women  in  this  situation  examined 
over  and  over  again;  in  criminal  cases  as  well  as  others. 

(i.ASELKR  J.  Without  laying  it  down  as  a  |)rinciple  that  there  are  no 
rases  in  which  a  party  can  put  himself  in  a  situation  to  preclude  him 
from  saying  that  a  woman,  \\]\o  has  passed  as  his  wife,  is  not  such,  1 
think  the  witness  in  this  case  ought  to  have  been  rc;ccived.  In  Macev. 
('(tdcll,  ("owp.  2'.V.i,  the  plaiiitifl"  INIace  kept  a  public  house,  had  a 
licence,  and  said  she  was  mari'ietl  to  one  l^ciu-icc.  She  went  to  the  Ex- 
cise (Jllicc,  had  his  name  entered  in  the  books,  with  a  note  in  the  mar- 
gii^.  "married."  Penrice  had  the  licence,  and  continued  in  possession 
of  the  house  and  goods  from  that  lime  till  he  absconrlcd,  committing 
thereby  an' act  of  bankrn|)try.  Maccr,  the  plaintifl",  first  claimed  the 
goods  in  qucfttion,  uiider  a  hill  of  sale  from  Penrice;  but,  afterwards,  as 
hrr  own  original  property,  and  (hniied  that  Penrice  and  she  were  mar- 
fa)  Kcfrn-id  It)  by  Milliards  C.  B.  in  Cinii/ibd[  \\   '/'ireni/'iti',  1  I'licf,  «1. 

VOL.   XV.  ]■:> 


90  Bell  v.  Bilton.  E.  T.  1828. 

ried:  The  Court  held,  that,  after  a  5olemn  declaration  by  the  plaintiff 
that  she  was  married  to  Penrice,  and  tliat  these  were  the  goods  of  Pen- 
rice  in  her  right,  she  should  never  be  allowed  to  say,  that  she  was  not 
married  to  hini,  and  that  the  goods  were  her  sole  property.  That  is 
sound  law,  upon  which  I  have  acted  at  Nisi  Prius.  The  ground  on 
which  we  grant  a  new  trial  here  is,  that  the*  evidence  as  to  the  situation 
of  the  female  was  not  sufiicient  to  exclude  proof  that  she  was  not  the 
defendant's  wife:  throughout  the  whole  of  the  trial  it  was  taken  she 
■was  his  mistress,  and  she  was  protected  from  answering  questions  as  to 
the  parentage  of  her  children. 

In  Campbell  v.  Twemlow  the  Court  gave  no  opinion  on  the  point, 
but  the  circumstances  of  the  case  were  very  different  from  the  present, 
for  the  female  had  constantly  been  held  out  as  the  wife  of  the  party:  the 
decision,  however,  turned  on  the  ground  that  the  Court  would  not  in- 
terfere \\  ith  the  award  of  a  barrister. 

Best  C.  J.  I  am  clearly  of  opinion  that  my  decision  at  Nisi  Prius 
w'as  wrong;  but  I  was  led  into  error  by  the  decision  of  Lord  KenyoUy 
n'hich,  I  am  satisfied,  bears  directly  upon  the  point.  It  cannot  be  ma- 
terial when  or  where  the  declarations  are  made,  as  to  the  character  in 
which  the  female  stands;  the  principle  of  that  case  is,  that  if  the  female 
be  held  out  as  the  wife  of  the  party,  she  must,  in  a  court  of  justice,  be 
considered  as  such;  nor  can  I  accede  to  the  position  that  a  party  would 
not  be  liable  in  an  action  for  goods  furnished  to  a  female  whom  he  had 
suffered  to  pass  as  his  wife.  But  the  ground  on  which  I  think  my  de- 
cision at  Nisi  Prius  wrong,  is  this,  that  the  principles  on  which  the  re- 
jection of  testimony  rests,  have  been  greatly  narrowed  in  late  times, 
and  directed  rather  to  the  credit  than  the  competency  of  witnesses.  It 
is  now  generally  agreed  that  the  principles  of  our  law  of  evidence  are 
too  narrow,  arid  that  much  inconvenience  is  produced  by  a  too  frequent 
exclusion  of  testimony.  In  Phillipps's  treatise  on  evidence,  which  I. 
refer  to,  not  as  authority,  but  as  proof  of  the  understanding  of  Westmin- 
ster Hall  on  the  subject,  the  same  conclusion  is  drawn  from  the  decision 
of  Lord  Kenyan,  as  I  drew  from  it  at  the  trial;  but  the  true  principle  to 
follow  on  such  occasions  is  that  which  is  stated  in  Starkie,  that  the  wit- 
ness is  not  to  be  excluded,  unless  dejure  wife  of  the  party.  Where  the 
situation  of  the  female  may  be  changed  in  a  moment,  and  is  so  different 
from  that  of  a  wife,  who  cannot  be  separated,  it  is  much  better  that  the 
objection  should  go  to  the  crcilit  than  to  the  competency  of  the  witness. 

Rule  absolute. 


BELL  V.  BILTON.— p.  G15. 

Before  suing  the  surety  of  the  grantor  of  an  annuity  in  respect  of  arrears  of  the 
annuity,  where  the  grantor  has  become  bankrupt,  the  value  of  the  annuity 
must  be  ascertained  by  the  commissioners,  although  the  annuity  was  granted, 

;    and  the  grantor  became  bankrupt,  previously  to  September  1825. 


ALLISON  V.  IIAYDON.— p.GlO. 

A  person  having  a  certificate  from  the  College  of  Surgeons  cannot  charge  for  at- 
tending a  patient  in  a  fever,  unlei>s  he  have  also  a  certificate  from  the  Apothe- 
caries' Company. 


4  Bingham/ 628.  91 

LEDBETTER,  Assignee  of  HOLLIS,  v.  SALT— p.  623. 

Affidavit  that  a  party  is  indebted  to  deponent  in  the  sum  of  lOOA  and  upwards, 
nnd  is  become  bankrupt,  is,  as  against  deponent,  conclusive  evidence  of  the 
bankruptcy. 


WILLIAM  BIRD,  an  Infant,  by  J.  BIRD,  his  next  Friend,  v.  HOL- 

BROOK.— p.  628.    • 

The  defendant,  for  the  protection  of  his  property,  some  of  which  had  been  stolen, 
set  a  spring  gun,  without  notice,  in  a  walled  garden,  at  a  distance  from  his  house: 
the  plaintiff",  who  climbed  over  the  wall  in  pursuit  of  a  stray  fowl,  having  been 
shot, — Held,  that  the  defendant  was  liable  in  damages. 

This  was  an  action  upon  the  case.  The  first  count  of  the  declaration 
alleged  that  the  defendant  had  placed  in  a  certain  garden  of  the  defend- 
antaccn.iin  instrument  called  a  spring  gun,  loaded  with  gunpowder  and 
shot,  Willi  certain  wires  communicating  with  the  lock  of  the  said  gun,  by 
the  treading  upon  which  the  gun  could  and  might  be  let  off;  by  means 
whereof  the  person  against  whom  the  same  should  be  discharged,  might 
and  coidd  be  much  hurt,  maimed,  and  wounded;  and  thereupon  it  be- 
came the  duty  of  the  defendant,  after  he  had  so  placed  the  said  gun,  not 
to  have  suffered  it  to  remain  so  loaded  without  giving  notice  or  warning, 
to  prevent  persons  having  occasion  to  enter  into  the  said  garden,  from 
treading  upon  the  wire,  in  ignorance  that  the  same  was  so  set,  and  there- 
by letiing  off  the  gun  and  being  injured  by  the  discharge  thereof.  Yet 
the  defendant,  not  regarding  his  duly  in  that  behalf,  wrongfully,  wilfully, 
and  n-.gligently  suffered  the  gun  to  remain  in  his  garden  so  loaded  and 
set,  without  giving  any  such  notice  or  warning  whatever;  by  means 
whereijf  the  plaintiff,  having  occasion  to  enter  into  the  garden,  and  not 
liaviii;/;  any  notice,  warning,  or  knowledge,  or  any  means  of  know- 
ledge that  any  spring  gun  was  set  in  the  garden,  trod  upon  the  wire  at- 
tached to  the  lock  of  the  gun,  by  means  whereof  it  was  let  off  and  dis- 
charged, and  the  shot  discharged  therefrom  were  driven  against  the 
plainlill,  and  one  of  his  legs  was- maimed,  and  the  jjlaintiff  was  other- 
wise injured,  and  became  disordered,  and  so  continued  for  a  long  time, 
by  means  whereof  he  sufl'ered  groat  f)ain,  and  expended  a  large  sum  of 
nionfy  in  his  cure. 

The  second  count  alleged,  it  was  a  duly  of  the  defendant  not  to  allow 
the  spring  gun  to  remain  loaded  in  the  day-time  without  notice,  to  pre- 
vent persons  from  treading;  upon  the  wire  from  ij^norance  that  it  was  set. 

The  third  count  described  the  spring  gun  as  a  certain  dangerous  en- 
gine, niailc  for  the  purpose  and  with  the  intent  to  lacerate,  maim,  and 
wound  persons,  and  alleged  it  was  the  duty  of  the  defendant  not  to  suffer 
the  spring  gun  to  remain  in  the  garden  without  using  due  and  proper  and 
reasonable  means  or  care  to  prevent  such  persons  as  might  enter  into  or  be 
in  tbep;arden,from  ignorantly  and  unwittingly  treadingupon  the  wire  com- 
municating with  the  lock  ol"  the  gun;  and  that  the  delentlant  diil  not  lake 
due  and  proper  and  reasonable  care  to  prevent  persons  who  might  enter 
into  or  lie  in  the  garden,  (rom  ignorantly  and  unwillingly  treading  upon 
the  wire  oflhc  gun,  and  therfhy  (•au>ing  il  lu  be  let  ulf   Thai  deUMMhoit  ii-- 


92  Bird  v.  Holuuook.  K.  T.  1828, 

glccteil  and  wholly  refused  so  to  do,  ami  on  thcooiUrary,contrivingand  in- 
lendinp;  to  injure  the  plaintiff,  wrongfully  and  injuriously  permitted  ihc 
gun  to  remain  so  loaded  and  set  with  a  wire,  by  means  of  which  it  might 
be  let  off  and  disoliargcd  witliout  any  notice  or  warning,  by  means 
whereof  the  plaintiff  not  being  able  to  ])crccive  a  certain  concealed  wire, 
and  not  having  any  notice  or  knowledge,  or  means  of  notice  or  know- 
ledge thereof,  trod  upon  the  said  last  mentioned  wire,  and  the  gun  was 
thereby  let  off.     Per  quod,  &c. 

The  fourth  count  charged  the  defendant  witli  having  set  upon  certain 
other  ground  of  the  defendant  a  spring  gun,  made  with  intent  to  lacerate, 
maim,  and  wound  persons,  being  then  and  there-loaded  with  gunpowder 
and  shot,  and  set  with  concealed  wires;  and  thereupon  it  became  tlic  du- 
ty of  defendant  not  to  permit  the  gun  to  remain  on  the  ground  without 
taking  due,  proper,  and  reasonable  means  and  care  to  prevent  any  person 
from  ignorantly  and  unwittingly  treading  upon  the  wire,  and  causing  it 
to  be  let  off. 

The  fifth  count  charged  that  the  wires  were  concealed  and  impercept- 
ible, and  that  the  defendant  had  taken  no  means  or  precaution  what- 
ever to  prevent  persons  from  treading  on  them  through  ignorance  that 
they  were  so  set;  and  tlefendant  wrongfully  permitted  the  plaintiff  in 
entering  into  and  proceeding  in  the  said  last-mentioned  ground,  to  tread 
upon  the  said  wire  so  concealed  and  imperceptible,  and  unknown  to  the 
plaintiff. 

The  sixth  charged  the  defendant  with  setting  a  gun  upon  certain  other 
land  of  the  defendant,  and  alleged  the  breach  of  duty,  in  having  taken  no 
means  or  precaution  whatever  to  prevent  persons  from  treading  on  the 
Avire,  and  wrongfully  and  injuriously  permitted  the  plaintiff,  in  entering 
into  and  proceeding  in  the  said  last  mentioned  garden,  to  tread  upon  the 
Avire. 

The  cause  was  tried  nt  the  Bristol  assizes,  1S25,  when  a  verdict  was 
taken  for  the  j)laintiff,  by  consent,  damages  50/.,  subject  to  a  case  reserv- 
ed, with  liberty  to  eiiher  party  to  turn  it  into  a  special  verdict.  The 
following  were  the  facts  of  the  case: — 

,  J^cfore,  and  at  the  time  of  tlie  plain!  ifi''s  sustaining  the  injury  complain- 
ed of,  the  defendant  rented  and  occupied  a  walled  garden  in  the  parish 
of  St.  Phillip  and  Jacob,  in  the  county  of  Gloucester,  in  which  the  de- 
fendant grew  valuable  flower-roots,  and  [)articularly  tulips,  of  the  choicest 
and  most  expensive  description.  The  garden  was  at  the  distance  of  near 
a  mile  from  the  defendant's  dv,^elling  house,  and  above  one  hundred 
yards  from  the  road.  In  it  there  was  a  summer-house,  consisting  of  a 
single-room,  in  which  the  defendant  and  his  wife  had  some  considerable 
lime  before  slept,  and  intended  in  a  few  days  after  the  accident  again  to 
have  slept,  for  the  greater  protection  of  their  property.  The  garden  was 
surrounded  by  a  wall,  by  which  it  was  separated  on  the  south  from  a 
footway  up  to  some  houses,  on  the  east  and  west  from  other  gardens, 
and  on  the  north  from  a  field,  wiiich  had  no  path  through  it,  and  was  it- 
self fenced  against  the  highway,  at  a  considerable  distance  from  the  gar- 
den, by  a  wall.  On  the  north  side  of  the  garden  the  wall  adjoining  the 
field  was  seven  or  eight  feet  high.  The  other  walls  were  somewhat 
lower.  The  garden  was  entered  by  a  door  in  tliewall.  The  defendant 
had  been,  shortly  before  the  accident,  robbed  of  flowers  and  roots  from 
his  garden  to  the  value  of  20/.  and  upwards:  in  consequence  of  which, 


4  Bingham,  628.  93 

for  the  protection  of  his  property,  with  the  assistance  of  another  man,  lie 
placed  in  the  garden  a  spring  gun,  the  wires  connected  with  which  were 
made  to  pass  from  the  door-way  of  the  summer-house  to  some  tulip  beds, 
at  the  height  of  about  fifteen  inches  from  the  ground,  and  across  three  or 
four  of  the  garden  paths,  which  wires  were  visible  from  all  parts  of  tjie 
garden  or  the  garden  wall;  but  it  was  admitted  by  the  defendant,  that  the 
plaintiff  had  not  seen  them,  and  that  he  had  no  notice  of  the  spring  gun 
and  the  wires  being  there;  and  that  the  plaintiti'had  gone  into  the  garden 
for  an  innocent  purpose,  to  get  back  a  pea-fowl  that  had  strayed. 

A  witness  to  whom  the  defendant  mentioned  the  fact  of  his  having  been 
robbed,  and  of  having  set  a  spring  gun,  proved  that  he  had  asked  the  de- 
fendant if  he  had  put  up  a  notice  of  such  gun  being  set,  to  which  the  de- 
fendant answered,  that  "he  did  not  conceive  that  there  was  any  law  to 
oblige  him  to  do  so,"  and  the  defendant  desired  such  person  not  to  men- 
tion to  any  one  that  the  gun  was  set,  "lest  the  villain  should  not  be  de- 
tected." The  defendant  stated  to  the  same  person  that  the  garden  was 
very  secure,  and  that  he  and  his  wife  were  going  to  sleep  in  tiic  summer- 
house  in  a  few  days. 

No  notice  was  given  of  the  spring  gun  being  placed  in  the  garden,  and 
before  the  accident  in  question  occurred,  another  person  to  whom  the  de- 
fendant mentioned  the  factof  his  garden  having  been  robbed  of  roots  to 
the  value  of  20/.,  and  to  whom  he  stated  his  intention  of  settingaspring 
gun,  proved  that  he  had  told  the  defendant  that  he  considered  it  proper 
tiiat  a  board  should  be  put  up. 

On  the  21st  March  1S25,  between  the  hours  of  six  and  seven  in  the 
afternoon,  it  being  then  liglit,  a  pea-hen  belonging  to  the  occupier  of  a 
house  in  the  neighbourhood  had  escaped,  and,  after  flying  across  the 
field  above  mentioned,  alighted  in  the  defendant's  garden.  A  female 
servant  of  the  owner  of  the  bird  was  inpursuit  of  it,  and  the  plaintifl"  (a 
youth  of  the  age  of  nineteen  years),  seeing  her  in  distress  from  the  fear 
of  losing  the  bird,  said  he  would  go  after  it  for  her:  he  accordingly  got 
upon  the  wall  at  the  back  of  the  garden,  next  to  the  field,  and  having 
called  out  two  or  three  times  to  ascertain  whether  any  person  was  in  the 
garden,  and  waiting  a  short  space  of  time  without  receiving  any  answer, 
jumped  down  into  the  garden. 

'J'he  bird  took  shelter  near  the  summer  house,  and  the  boy's  foot  com- 
ing in  contact  with  one  of  the  wires,  close  to  the  spot  where  the  gun  was 
set,  it  was  thereby  discharged,  and  a  great  part  of  its  contents,  consisting 
of  large  swan  shot,  were  lodgctl  in  and  about  his  knee-joint,  and  caused 
a  severe  wound. 

The  question  for  the  opinion  of  the  Court  was,  whether  tlie  plaintiff 
was  entitled  to  recover:  if  so,  the  verdict  was  to  slamJ;  otherwise  a  non- 
suit was  to  be  entered. 

pn/cle  Serjt.  for  the  plaintifT,  cited  2  Inst.  31 G;  East's  Pleas  of  the 
Crown,  vol.  i.  273.  2SS;  liegiiia  v.  Alawgridge,  Kclyngc,  132; 
Hale's  Pleas  of 'the  Crown,  473.  48G. ;  Deanc  v.  Clayton,  7  Taunt. 
518;  Ilottw.  IVilks,^  B.  &  A.  .308. 

Alereivether  Serjt.  for  the  defendant,  cited  Blilhe.  v.  'I'ojihaui,  1  Rol. 
Abr.  88,  Cro.  Jac.  158;  Brock  v.  C'opcland,  1  Ksp.  20J. 

JVilde  in  reply. 

Bkst  C.  .f.  I  am  of  opinion  that  this  action  is  maintainable.  If  any 
thing  which  fell  from  mc  in   lio/i  v.   ff'il/cs  were  at  variance  with  the 


91  BiuD  r.  IIoLUKooK.   E.  T.  1828, 

o])inioii  I  now  cxprt'ss,  I  slioulil  not  hesitate  to  retract  it;  but  the  ground 
on  which  the  jiuigmcnt  of  tlic  (^^ouit  turned  in  tliat  case,  is  decisive  of 
the  present;  and  I  should  not  liave  laboured  the  point  that  the  action 
was  not  maintainable  in  that  case  on  the  ground  that  the  plaintiffiiad  re- 
ceived notice,  unless  I  had  deemed  it  maintainable  if  no  notice  had  been 
given.  Abbott  C.  J.  says:  ♦<  Considering  the  present  action  merely  on 
the  ground  of  notice,  and  leaving  untouclied  the  general  question  as  to 
the  liability  incurred  by  placing  such  engines  as  these,  where  no  notice 
is  brouglit  home  to  the  party  injured,  I  am  of  opinion  that  this  action 
cannot  be  maintained."  Jiayley  J.  says:  "  This  is  a  case  in  which  the 
plaintifl'  had  notice  that  there  were  spring  guns  in  the  wood."  "The 
declaration  assumes  the  law  to  be,  not  that  the  mere  act  of  placing  these 
guns  in  a  man's  own  ground  is  illegal,  and  punishable  by  indictment, 
but  that  a  party  doing  that  act  may  be  liable  to  an  action,  provided  he 
does  not  take  due  and  pi'oper  means,  by  giving  notice,  to  prevent  the 
injury  which  those  engines  are  calculated  to  produce."  llolroyd  J. 
says:  "  I  am  of  opinion  that  this  action  is  not  maintainable,  on  the 
ground  that  the  plaintifl'  had  notice  that  the  spring  guns  were  placed  in 
the  wood  in  question."  "So  far  as  he  was  concerned,  the  cause  of  the 
mischief  could  not  be  considered  as  latent,  and  the  act  of  letting  off  the 
gun,  which  was  the  consequence  of  his  treading  on  the  wire,  must  be 
considered  wholly  as  his  act,  and  not  the  act  of  the  person  who  placed 
the  gun  there."  And  I  am  reported  to  have  said,  expressly,  "Hu- 
manity requires  tliat  the  fullest  notice  possible  should  be  given,  and  the 
law  of  England  will  not  sanction  what  is  inconsistent  with  humanity." 
It  has  been  argued  that  the  law  does  not  compel  evci  y  line  of  conduct 
which  humanity  or  religion  may  require;  but  there  is  no'iact  which 
Christianity  forbids,  that  the  law  will  not  reach:  if  it  were  otherwise, 
Christianity  would  not  be,  as  it  has  always  been  held  to  be,  part  of  the 
law  of  England.  I  am,  therefore,  clearly  of  opinion  that  he  who  sets 
spring  guns,  without  giving  notice,  is  gi^ilty  of  an  inhuman  act,  and  that, 
if  injurious  consequences  ensue,  he  is  liable  to  jncld  redress  to  the  suf- 
ferer. But  this  case  stands  on  grounds  distinct  from  any  that  have 
preceded  it.  In  general,  spring  guns  have  been  set  for  the  purpose  of 
deterring;  the  defendant  placed  his  for  the  express  purpose  of  doing  in- 
jury; for,  when  called  on  to  give  notice,  he  said,  "if  I  give  notice,  I 
shall  not  catch  him."  He  intended,  therefore,  that  the  gun  should  be 
discharged,  and  that  the  contents  should  be  lodged  in  the  body  of  his 
victim,  for  he  could  not  be  caught  in  any  other  way.  On  these  princi- 
})les  the  action  is  clearly  maintainable,  and  particularly  on  the  latter 
ground.  The  only  thing  which  raised  any  doubt  in  my  mind  was  the 
recent  act  of  parliament;  and  if  that  had  been  purely  prohibitory,  there 
would  be  great  weiglit  in  the  aryrument  which  has  been  raised  on  it;  be- 
cause  in  a  new  prohibitory  law  we  have  the  testimony  of  the  legislature 
that  there  was  no  previous  law  against  the  thing  prohibited.  But  the 
act  is  declaratory  as  to  part,  and  ])rohibitory  as  to  pari;  declaratory  as 
to  the  setting  of  spring  guns  without  notice,  and  the  word  "declared" 
is  expressly  introduced;  prohibitory  as  to  setting  spring  guns,  even 
with  notice,  except  in  dwelling-houses  by  night.  As  to  the  case  of 
Jirock  v.  CopelanJ,  J^ord  Kenyan  proceeded  on  the  ground  that  the 
defendant  had  a  rigiit  to  keep  a  clog  for  the  preservation  of  his  house, 
and  the  plaintilT,  who  was  his  foreman,  knew  w^hcre  the  dog  was  stii- 


4  BiXGHAM,  628.  95 

tioned.  The  case  of  the  furious  hull  is  nltogethcr  different;  for  if  o  mnn 
places  such  an  animal  where  there  is  a  public  footpath,  he  iiitcrferea 
with  the  rights  of  the  public.  What  would  be  the  determination  of  the 
Court  if  the  bull  were  placed  in  a  field  where  there  is  no  footpath,  we 
need  not  now  decide;  but  it  may  be  observed,  that  he  must  be  placed 
somewhere,  and  is  kept,  not  for  mischief,  but  to  renew  his  species; 
while  the  gun  in  the  present  case  was  placed  purely  for  mischief.  The 
case  of  the  pit  dug  on  a  common  has  been  distinguished,  on  the  ground 
that  the  owner  had  a  right  to  do  what  he  pleased  with  his  own  land,  and 
the  plaintiff  could  shew  no  right  for  the  horse  to  be  there. 

Those  cases,  therefore,  do  not  apply  to  one,  where  an  instrument  is 
placed  solely  for  a  bad  purpose.  In  Deane  v.  Clayton,  I  incline  to 
the  opinion  expressed  by  my  brothers  Park  and  Burroxip,h.  But  iti 
Deane  v.  Clayton,  the  plaintiff,  the  master  of  the  dog,  had  a  right  to 
jiunt  in  the  wood  adjoining  that  in  which  the  dog  was  spiked;  there  was 
no  visible  boundary  between  the  two  woods;  the  manner  in  which  the 
plaintiff  and  defendant  occupied  their  respective  properties  was  evidence 
of  an  understanding  between  them  that  the  enjoyment  should  be  mutual; 
and  the  dog  was  impelled  onwards  by  his  natural  instinct  in  pursuit  of 
the  game.  Looking  at  the  authorities,  therefore,  Deane  v.  Clayton  is 
out  of  the  question;  and  Ilott  v.  JVilks  is  an  authority  in  point.  But 
we  want  no  authority  in  a  case  like  the  present;  we  put  it  on  the  prin- 
ciple that  it  is  inhuman  to  catch  a  man  by  means  which  may  maim  him 
or  endanger  his  life,  and,  as  far  as  human  means  can  go,  it  is  the  object 
of  English  law  to  uphold  humanity,  and  the  sanctions  of  religion.  It 
would  be,  indeed,  a  subject  of  regret,  if  a  party  were  not  liable  in  da- 
mages, who,  instead  of  giving  notice  of  the  employment  of  a  destructive 
engine,  or  removing  it,  at  least,  during  the  day,  expressed  a  resolution 
to  withhold  notice,  lest,  by  affording  it,  he  should  fail  to  entrap  his 
victim. 

Pahk  J.  I  adhere  to  the  judgment  I  gave  in  Deane  v.  Clayton,  but 
shall  confme  myself  at  present  to  the  facts  before  the  Court.  Whether 
the  recent  act  of  parliament  be  altogether  a  new  law,  or  only  declaratory 
of  the  old,  I  abstain  from  deciding;  certainly,  as  far  as  it  makes  tho 
setting  spring  guns  without  notice  an  offence,  it  seems  to  be  a  new  law, 
but,  in  the  present  case,  I  found  my  decision  on  the  circumstance  of  the 
defendant  having  omitted  to  give  notice  of  what  he  h.ui  done,  and  his 
even  expressing  a  desire  to  conceal  it.  In  Ilott  y.  Jl'ilks,  the  whole 
(Jourt  proceeded  on  the  ground  that  the  j)laintill  had  had  notice:  and  in 
Deane  v.  Clayton  there  was  notice,  but  under  the  circumstances  it 
could  not  be  said  to  have  been  brought  home  to  the  trespasser.  It  has  been 
contended,  that  though  notice  may  deprive  a  party  who  has  received  it 
of  any  right  to  recover,  yet  that  it  has  nowhere  been  decided  that  it  is 
imperative  on  the  party  using  the  engine  to  give  notice.  But  in  Ilntt  v. 
f rules,  the  Court,  one  and  all,  decide  on  the  ground  ol'  notice,  and  */2b- 
t)ott  (y.  J.  closes  his  judgment  thus:  *'  Considering  the  present  action 
merely  on  the  ground  of  notice,  and  leaving  untouched  the  general 
question  as  to  the  liability  incurred  by  placing  such  engines  as  these, 
whcie  no  notice  is  brought  home  to  the  party  injured,  I  am  of  ojiinion 
that  this  action  cannot  be  maintained."  It  has  been  asked,  where  has 
it  been  laid  down  that  notice  must  he  given?  I  answer,  by  %flbholt  C..T. 
in  the  passage  I  have  just  read;  and  by  Bnylry  J.  in  the  same  case; 


96  Harkis  v.  Bf.avan.  E.  T.  1828. 

**  Allhough  it  may  he  lawful  to  put  lliose  instruments  on  a  man's  own 
ground,  vet,  as  they  iire  calculatctl  to  produce  great  bodily  injury  to  in- 
nocent j)crsons  (for  many  trespassers  are  comparatively  innocent),  it  is  ne- 
cessary to  give  as  much  notice  to  the  public  as  )'0u  can,  so  as  to  put 
pcoj)le  on  their  guard  against  the  danger."  One  case  precisely  in  point 
lias  not  been  adverted  to;  it  is  that  oi  Jay  v.  JVhitfield,  3  13.  &  A.  SOS, 
(in  the  ai-gument  in  Holt  v.  flllks.)  Tliere  the  plaintiff,  a  bo}^,  having 
entered  the  defendant's  premises  for  the  purposes  of  cutting  a  stick,  was 
shot  by  a  spring  gun,  for  which  injury  he  recovered  120/.  damages  at 
the  Warwick  Summer  assizes  1S07,  before  Richards  C.  B.,  and  no  at- 
tempt was  made  to  tlisturb  the  verdict. 

BuRROUGH  J.  Tlic  common  understanding  of  mankind  shews,  that 
notice  ought  to  be  given  when  these  means  of  protection  are  resorted  to; 
and  it  was  formerly  the  practice  upon  such  occasions  to  give  public  no- 
tice in  market  towns.  But  the  present  case  is  of  a  worse  complexion 
than  those  which  have  preceded  itj  for  if  the  defendant  had  proposed 
merely  to  protect  his  property  from  thieves,  he  would  have  set  the  spring 
guns  only  by  night.  The  plaintifl' was  only  a  trespasser:  if  the  defend- 
ant had  been  present,  he  would  not  have  been  authorized  even  in  taking 
him  into  custody,  and  no  man  can  do  indirectly  that  which  he  is  for- 
bidden to  do  directly.  I  held  that,  in  Deanc  v.  Clayton,  There,  the 
defendant  was  owner  and  occupier  of  a  wood  adjoining  a  wood  of  Mr. 
Townshend's,  and  divided  from  it  by  a  low  bank  and  a  shallow  ditch, 
not  being  a  sufficient  fence  to  prevent  dogs  froni  passing  from  one  wood 
into  the  other.  There  were  public  footpaths  u-ithout  fences  through  the 
defendant's  wood.  The  defendant,  to  preserve  hares  in  his  wood,  and 
prevent  them  from  being  killed  therein  by  dogs  and  foxes,  kept  iroa 
spikes  screwed  and  fastened  into  several  trees  in  his  wood,  each  spike 
having  two  sharp  ends,  and  so  placed  that  each  end  should  point  along 
the  course  of  a  harc-patli,  at  such  a  height  from  the  ground  as  to  allow 
a  hare  to  pass  under  them  without  injury,  but  to  wound  and  kill  a  dog 
that  mij;ht  happen  to  nm  against  one  of  the  sharp  ends.  The  defendant 
kept  notices  printed  on  boards  j)laced  at  the  outsides  of  the  wood,  that 
steel  traps,  spring  guns,  and  dog  spikes  were  set  in  the  wood  for  ver- 
min. But  the  plaintiff,  with  Mr.  Townshend's  permission,  being  out 
shooting  in  his  wood  with  a  valuable  pointer,  and  a  hare  which  was 
started  being  pursed  by  the  dog  over  the  bank  and  ditch,  into  the  de- 
fendant's wood,  the  dog  ran  against  one  of  the  sharp  spikes,  and  was 
killed,  although  plaintiff  endeavoured  to  prevent  him  from  entering  the 
defendant's  wood. 

Here,  no  notice  whatever  was  given,  but  the  defendant  artfully  ab- 
stained from  giving  it,  and  he  must  take  the  corisequence. 

Gaselee  .1.  After  the  decision  in  Ilott  v.  JVilks,  it  is  impossible  to 
say  that  this  action  is  not  maintainable. 

Judgment  for  the  plaintifT. 


HARRIS  and  Another  v.  BEAVAN.— p.  G4G. 

Tlic  assignee  of  the  reversion  snint^  defendant  in  covenant,  alleged  that  the  lessor 
was  seised  (without  stating  of  what  estate),  and  being  so  seised,  devised  to 
jilaintifF  in  fee. 

After  verdict:  Held,  a  siifiicient  allegation  of  title. 


4  BiNtmAM,  646.  97 

The  declaration  staled,  that  Charles  Bartholomew  being  seised  of  one 
undivided  nioicly  of  certain  tenements,  by  an  indenture  of  17S4  be- 
tween Charles  liartholomew  of  tlie  first  part,  Archdall  Harris  of  the  se- 
cond, Eleanor  Harris  of  the  third,  and  John  Paggett  of  the  fourth,  they, 
Charles,  Archdall,  and  Eleanor,  demised  the  tenements  to  John  Paggett 
for  forty-five  years,  at  the  yearly  rent  of  40/.,  yielding  to  the  said 
Charles,  in  respect  of  the  said  moiety,  20/.  yearly: — covenant  by  John 
Paggett  with  Charles  Bartholomew,  his  heirs  and  assigns,  to  pay  to  hina 
the  rent  of  20/.  in  respect  of  the  said  moiety:  covenant  with  Charles, 
Archdall,  Eleanor,  and  their  heirs  and  assigns,  to  repair: — 

That  Paggett  entered,  and  that  afterwards  his  interest  and  term  of 
years  yet  to  come  vested  in  the  defendant  by  assignment,  and  that  de- 
fendant entered. 

That  Charles,  being  so  seised  as  aforesaid,  in  1S22  devised  the  de- 
mised premises  of  him,  Charles,  to  the  plaintiffs  and  their  heirs,  and  the 
same  year  died  so  seised  of  the  reversion  in  the  demised  premises, 
whereby  the  plaintiffs  became  seised  of  the  said  reversion  in  the  said  de- 
mised premises.  That  while  the  plaintiffs  were  so  seised  of  the  said  re- 
version, 10/.  became  due  from  the  defendant  for  two  quarters  of  the  rent 
aforesaid.      Breach,  non-payment  and  non-repair. 

A  verdict  having  been  found  for  the  plaintiffs  at  the  INIiddlescx  sittings 
after  last  Michaelmas  term, 

fVilde  Serjt.  moved  in  arrest  of  judgment,  that  the  declaration  only 
stating  that  Charles  Bartholomew  was  seised,  without  saying  of  what 
estate,  it  did  not  appear  that  he  was  seised  of  a  sulTicient  estate  to  demise 
to  Paggett  for  forty-five  years,  much  less  to  devise  to  the  plaintiffs  in 
fee.  If  his  seisin  were  only  for  life,  and  it  was  nowhere  averred  to  be 
in  fee,  he  could  do  neither  the  one  nor  the  other,  so  that  the  plaintiffs 
had  shewn  no  title  which  could  authorise  them  to  sue  the  defendant. 

A  rule  nisi  having  been  granted, 

TiuUhj  Serjt.  shewed  cause,  and  referred  to  Ilobsnn  v.  Middleton,  G 

B.  &  C.  302;  Hex  v.  Bishop  of  Llundaff,  2  Str.  1012. 

IVildey  contra,  cited  1  Wms.  Saund.  234«.  note  3;  Com.  Dig.  Pleader, 

C.  36;  Carth.  9;  Vin.  Abr.  Title,  i).  10.  F.  1;  Carvick  v.  Bfa^rave,  1 
B.  &  B.  530;  Bro.  Abr.  Pleadings,  33;   Year-Book,  24  E<l.  3.  75. 

Bkht  C.  J.  'J'he  plaintiff's  title  is  very  im|)orfe('tly  staled,  but  it  is 
suflicient  after  v(;rdict.  No  doubt,  when  assignees  of  a  reversion  sue, 
they  must  deduce  title  hiixn  the  original  lessor.  The  phi i tit  ids  havi! 
done  so:  they  allege  that  the.  original  lessor  was  seised,  ami  though 
there  is  ambiguity  in  the  expression,  it  is  cured  by  pleading  over,  and 
the  finding  of  the  jury. 

(lASKr.Ki:  .1.  Ill  the  case  from  11  Modern  lioporls,  referred  loin 
Vin.  Abr.  Title,  I).,  Jl'illr.t  v.  liosntmh,  (1  I  Mod.  17!',^  covenant  was 
l)roiiglil  by  an  heir,  for  rent,  ag.iinsl  the  assignee;  but  it  was  not  set 
forth  in  the  declar;ilion  ibnl  the  ancestor  was  seised  of  any  estale  win  ri 
In:  inad(;  the  demise:  the  Cfnirl  held  that  bad,  because  it  did  not  appe.ir 
that  the  ancestor  had  any  estate;  and  Sravdi^i'  v.  //t/if'/,-ins,  (-ro.  Car. 
571,  being  referred  to^  ffo//  C  J.  s;iid,  *< 'I'he  case  of  .Stv/tv/ifc  v.  J fuu- 
/rins  is  well  on  issue  joined,  be<'aiise  it  .shews  the  father  was  sciised.  ' 
The  case  F.  I.  does  not  ajipear  to  have  been  after  veidifl.  'I'he  rule 
thr-refore  must  be 

Discharged. 

vor,.  XV.  13 


98  WADiintN  r.  Mo h his.    E.  T.  1S28. 


PxADBURN  V.  MORRIS  and  BOTTOMLEY.— p.  G49. 

B.,  called  as  a  witness  for  the  defendant  in  an  action  brought  by  the  ])laintifrfor  a 
barge  which  VV.  had  placed  in  the  hands  of  defeiulaut,  and  which,  it  was  al- 
leged, H.  had  sold  to  the  plaiiitifV  first,  and  then  to  W.,  was  liolden  a  compe- 
tent witness  for  the  defendant, having  been  released  by  W. 

Trover  for  a  barge. 

The  plaintifl"  claimed  the  barge  under  a  purchase  from  Buckman. 
The  defendants,  who  were  partners,  claimed  it  under  Wilson,  who,  it 
Avas  alleged,  had  also  purchased  it  of  Buckman. 

At  the  trial  before  Burroiigh  J.,  London  sittings  after  Michaelmas 
term,  Buckman  was  calleil  as  a  witness  to  prove  the  defendant's  right 
to  the  barge,  but  was  rejected,  as  having  an  interest  in  the  cause,  lie 
was  then  released  by  Wilson,  Morris,  and  his  partner,  jointly,  by  a  re- 
lease having  only  one  stamp;  by  Morris  and  his  partner,  by  a  release 
signed  by  Bottomley  only;  and  by  Wilson  severally;  but  it  was  held 
the  releases  did  not  restore  his  competency;  and  a  verdict  having  been 
given  for  the  plaintiff, 

Bompas  Serjt.  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground  that 
the  witness  had  been  improperly  rejected. 

JVilde  Serjt.  shewed  cause,  and  cited  Jiilamson  v.  Jarvis,  4  Bingh. 
66  ;  Piesley  v.  Von  Esch,  2  Esp.  N.  P.  C.  606;  James  v.  Hat- 
field,  1  Str.  548. 

Bompas  contra,  referred  to  Carter  v.  Pearce,  1  T.  R.  164;  Abra- 
hams V.  Biinn,  4  Burr.  2254. 

Best  C.  J.  1  am  clearly  of  opinion  that  the  defendants  could  not  sue 
Buckman:  any  action  they  could  have  maintained  in  case  the  plaintiff 
liad  recovered,  must  have  been  brought  against  Wilson,  under  whom 
they  claimed;  if  so,  no  release  was  necessary  from  them  to  Buckman.  I 
doubt  whether  a  release  were  necessary  even  from  Wilson;  because,  if  so, 
it  would  be  necessary  in  many  cases  for  a  hundred  persons  to  release  in 
succession;  and  it  is  better  that  objections  to  the  competency  of  a  witness 
on  the  score  of  interest  should  be  confmed  to  his  interest  in  the  immedi- 
ate cause.  But  if  it  were  necessary  for  Wilson  to  release,  I  am  of  opinion 
tliat  he  has  sufficiently  done  so.  Where  at  the  time  the  instrument  is 
executed  the  transaction  has  occurred  out  of  which  the  future  action,  if 
any,  is  to  arise  against  tlie  witness,  there  is  no  reason  why  a  party  should 
not  bar  himself  with  respect  to  that  transaction,  though  it  might  be  other- 
wise with  respect  to  causes  of  action  which  had  not  arisen  at  the  time 
the  release  was  executed. 

Park  J.  I  confine  my  opinion  to  the  last  point:  the  witness  was,  at 
all  events,  rendered  competent  by  the  release  from  Wilson.  Morris  and 
h.is  partner  could  never  liave  sued  the  witness,  and  Wilson,  who  might 
perhaps  have  been  placed  in  a  situation  to  sue  him,  has  effectually  releas- 
ed every  claim  to  arise  out  of  the  transaction  in  dispute.  , 

BuRROUGH  J.  declined  to  deliver  any  opinion. 

Gaselee  J.  The  defendants  could  not  sue  Buckman,  and  therefore  it 
is  unnecessary  to  say  whether  the  first  release  were  valid  or  not,  though 
I  am  inclined  to  think  it  was,  because  it  related  to  a  transaction  in  which 
ilic  three  relcssors  were  all  concerned,  liutas  an  action  could  only  have 
been  maintained  against  Buckman  by  Wilson,  his  release  is  sufficient. 

Rule  absolute.    • 


4  BiNGUAM,  653.  99 


ROUTLEDGE  v.  GRANT.— p.  G53. 

1.  Defendant  having  offered  to  jjurcliase  a  house,  and  to  give  plaintiff  six  weeks 
for  a  definitive  answer,  Held,  that  before  the  offer  was  accepted,  the  defendant 
might  retract  it  at  any  time  during  the  six  weeks. 

2.  Averment,  that  plaintiff  was  entitled  to  a  term  of  thirty-two  years  in  the  pre- 
mises, under  a  contract  with  A.,  and  that  plaintiff  having  agreed  to  take  the 
premises,  defendant  was  ready  to  grant  him  a  lease  of  thirty-one  years: 

Plaintiff  having  only  a  twelve  years'  term  in  the  premises.and  shewing  no  written 
contract  with  H.  lor  a  term  of  thirty-two  years.  Held,  a  material  variance. 

3.  Defendant  offered  to  purchase  a  liouse  upon  certain  terms,  "possession  to  be 
given  on  or  before  25  th  July;"  plaintiff  agreed  to  the  terms,  and  said  he  would 
give  possession  on  the  first  of  August,  Held,  no  acceptance  of  defendant's  offer. 

Assumpsit.  The  declaration  stated  (first  count)  that  the  plaintiff  was 
possessed  of  a  term  in  a  dwelling-house,  to  expire  25th  December  1S5(); 
and  that  defendant  agreed  on  the  29th  April  1S25,  upon  receiving  a  lease 
for  twenty-one  years,  at  250/.  a  year  rent,  with  the  option  of  having  the 
time  extended  to  thirty-one  years,  on  giving  six  montiis'  notice,  and, 
upon  having  possession  on  tlie  25th  July  then  next,  to  pay  plaintiff  2750/., 
and  take  the  fixtures  at  a  valuation. 

Averment  of  plaintiff's  readiness  to  grant  the  lease.  Breach;  refusal  to 
accept  it,  and  to  take  the  fixtures  at  a  valuation;  and  non-payment  of 
the  2750/. 

The  second  count  alleged  the  plaintiff  to  be  entitled  to  a  certain  term, 
to  wit,  a  term  of  thirty-two  years,  in  the  dwelling-house,  under  a  certain 
contract  between  the  plaintiffand  Anthony  Hermon,  who  was  authoriz- 
ed in  that  behalf;  and  then  statetl  the  agreement  with  the  defendant,  ami 
the  breach,  as  before. 

The  third  count  alleged  jjlaintill"  to  be  possessed  for  the  residue  of  a 
certain  t»;rm,  to  expire  25th  December  1S56;  and  the  agreement,  tender 
of  lease  to  defendant,  and  breach,  as  before. 

At  the  trial  before  Best  C.  J.,  London  sittings  after  Michaelmas  term, 
it  ajjpcarcd,  that  on  the  ISth  March  1825,  the  plaintiff  received  a  note 
from  the  defendant  touching  the  j)remises,  in  these  terms: — 

'*Mr.  Grant's  proposal. 

"To  pay  a  premium  of  2750/.,  upon  receiving  a  lease  for  twenty-one 
years,  with  the  option  (u|)on  giving  six  months'  j)revious  notice  to  the 
landlord  or  his  agent)  of  having  the  time  extended  to  thirty-one  years, 
paying  the  same  yearly  rent  as  before,  for  such  extended  term  of  ten  years 
beyond  twenty-one  years. 

"Kent,  250/. 

"Mr.  Grant  to  pay  for  the  fixtures  at  a  viduation,  ))ossession  to  be 
given  on  or  before  25th  July  next,  to  which  time  all  taxes  and  outgoings 
arc  to  Ik;  discharged  by  Mr.  Houtledge;  and  a  definitive  answer  to  be  given 
within  six  weeks  from  the  18th  March  1825." 

The  plaintiff,  who  at  this  time  bad  only  a  term  of  twelve  years  in  the 
j)rcmises,  had  to  apply  to  his  landlord  for  a  new  lease,  before  he  was  in 
cuntlition  to  accept  the  defendant's  ofi'er.  The  plaintilf  having  cotne  to 
an  miderstanding  with  his  landlord,  wrote  the  following  note  t<j  the  de- 
fendant:— 


100  KUUTLKDCI::  u.  (luANT.  K.  T.   1828. 

"Mr.  Routlcdge  bogs  to  s;iy  tluil  lie  accepts  Mr.  (liaiit's  oHer  Cur  liij* 
house,  No.   5f>  St.  James's  Slicet,  and  lliat  lie  will  }j;lve  Mr.  (Iraiit  \)oa- 
session  on  tlie  first  of  August  next. 
"Si.  .himes's  Street,  (ith  April  iS'jr.. 

"Mr.  II.  will  esteem  it  a  j)aiticular  favour  if 
Mr.  Grant  will  not,  for  the  present,  name 
the  subject  to  any  one." 

The  defendant  returned  the  following  answer: — 

"7th  April  1825. 

"Sir, — I  received  your  note  last  night,  and  hasten  to  actjuaint  you, 
that  having  considered  as  confidential  the  negotiation  respecting  your 
liousc,  I  had  mentioned  it  to  no  one;  but,  ui)on  consulting  with  a  friend 
this  morning  in  whose  opinion  1  have  more  confulence  than  ni}'  own, 
I  am  advised,  for  some  reasons  which  had  not  occurred  to  myself,  not 
to  think  of  taking  a  house  in  St.  James's  Street  for  a  dwelling-house. 
INIay  I  therefore  request  you  to  permit  me  to  withdraw  the  proposal  I 
made  to  you  about  it?  I  am  in  hopes  you  will  make  no  hesitation  to  do 
this,  when  you  consider  the  spirit  of  candour  and  openness  in  which  it 
was  made  to  you.  13ut  sbould  it  he  otherwise,  as  I  am  the  last  that 
would  willingly  act  with  inconsistency,  I  will  willingly  refer  the  ques- 
tion to  friends  for  decision,  and  abide  by  their  opinion  of  the  case. 

"I  have  the  honour  to  be,  &c. 

"Alex.  Grant." 
"Mr.  Thomas  Routledgc." 

To  this  the  plaintiff  replied  as  follows: — 

"Sth  April  1S25. 
"Sir, — In  answer  to  your  letter  of  yesterday,  I  beg  to  state,  that  rely- 
ing upon  your  performing  the  agreement  fur  the  purchase  of  my  house 
in  St.  James's  Street,  I  have  taken  anotiicr  house,  and  made  arrange- 
ments which  I  cannot  without  great  los.s  relincjuish.  1  hope,  therefore, 
that  you  will  not  wish  me  to  willuliaw  it. 

"I  am,  «S:c. 

"Thos.  Roulledge^" 
^'Alexander  Grant,  Escjuirc." 

The  defendant  rejoined, — 

"9th  April  1S25.    ^ 

"Sir, — Your  note  of  yesterday  surjiri.scd  me,  being  altogeliier  at  vari- 
ance with  your  convcrsalion  with  me  two  or  three  hours  j^revious  to  your 
note,  dated  on  the  evening  of  (>lli,  in  which,  you  must  recollect,  you 
one  moment  declared  yourself  olf;  and  fuially,  you  went  away  to  have 
the  opinion  of  Mrs.  lioutledge,  about  the  answer  you  were  to  send  me. 
How,  therefore,  you  can,  under  such  circumstances,  suffer  loss  and  in- 
convenience from  my  declining  to  ])roceed  further  in  the  treaty,  I  am  at 
a  loss  to  imagine;  and  1  was  in  hopes  you  would  have  been  satisfied  with 
Avhat  I  had  stated  in  iiply  to  your  first  note,  to  have  had  the  liberality 
of  letting  the  matter  tlroj).  lUit  if  that  should  not  be  your  intention,  I 
have  only  to  add,  that  you  may  proceed  with  your  claim  for  "loss  and  in- 
convenience" as  you  may  think  most  advisable. 

"I  am,  &c. 

"Alex.  Grant." 
"JNIr.  'I'lioniai  Routledg'.-." 


4  Bingham,  653.  101 

Tlie  plaintilT  after  this  surrendered  the  existing  lease  to  liis  landlord, 
and  obtained  from  him  a  new  one,  dated  21st  April  1825,  from  the  25th 
December  1S24,  for  thirty-two  years,  for  the  same  clear  yearly  rent  of 
250/.,  payable  quarterly;  in  which  the  covenants  on  the  part  of  the  lessee 
were  similar  to  those  in  tl>e  former;  and  then  wrote  the  defendant  the  fol- 
lowing letter: — 

<<Sir, — Upon  referring  to  my  letter  to  you  of  the  fjth  instant,  accept- 
ing your  offer  for  my  house,  No,  59  St.  James's  Street,  I  perceive  that  I, 
by  mistake,  stated  that  I  would  give  possession  on  the  first  day  of  Au- 
gust ne.vt.  IJy  your  offer,  you  state  that  possession  is  to  be  given  on  or 
before  the  25th  July  next;  and  I  inform  you  that  I  am  ready  to  give  you 
possession  according  to  your  proposal. 

"I  am,  &c. 

"Thos.  Routlcdge." 
"29th  April  1S25." 

This  letter,  on  the  day  it  was  dated,  was  delivered  at  the  defendant's 
house;  and  the  keys,  and  a  lease  of  the  premises  in  question,  according 
to  the  agreement,  were  tendered  to  him  before  the  25th  July,  but  re- 
jected. 

The  six  weeks,  from  the  ISth  March  1S25,  within  which,  by  the  de- 
fendant's proposal,  a  definitive  answer  was  to  be  given,  expired  on  the 
1st  May  1S25. 

Upon  these  facts  it  was  objected,  first,  that  the  plaintiff  being  allowed 
six  weeks  to  accept  or  reject  the  defendant's  offer,  the  defendant  was  en- 
titled, also,  until  it  was  accepted,  to  retract,  at  any  period  before  the  ex- 
piration of  the  six  weeks;  that  there  was  no  acceptance  of  the  terms  pro- 
posed, till  the  2yih  of  April,  which  came  too  late,  the  defendant  having 
retracted  his  proposal  on  the  9th.  Secondly,  that  the  plaintiff"  hail  not, 
before  the  defendant  withdrew  his  proposal,  any  such  interest  in  the 
premises  as  he  was  alleged  to  have  in  the  declaration,  or  as  would  have 
enabled  him  to  accede  to  that  proposal.  The  plaintiff"  was  thereupon 
nonsuited,  with  leave  to  move  the  Court  to  set  the  nonsuit  aside. 

Tudihj  Scrjt.  accordingly  obtained  a  rule  nhi  to  set  aside  this  nonsuit, 
and 

fVildc  Serjt.  shewed  cause,  and  cited  Kcnnedj/  v.  Lee,  3  Meriv.-151; 
AdarriH  v.  Lindsclt,  1  I  J.  &  A.  GSl;  Coolce  v.  O.rley,  3  T.  R.  G53. 

Taddij  and  Jones  Serjts.  in  support  of  the  rule,  referred  to  Carvic/c 
V.  lilafrrave,  1  IJ.  &  IJ.  53G,   4  Ji.  M.  303. 

JiKST  C.  J.  The  nonsuit  was  right  on  both  grounds.  I  put  it  on  the 
same  footing  as  I  did  at  Nisi  Prius.  Here  is  a  i)roposal  by  the  defendant 
to  take  property  on  certain  terms;  namely,  that  he  should  be  let  into 
possession  in  July.  In  that  proposal  he  gives  the  phiintill"  six  weeks  to 
consitlcr;  but  if  six  weeks  are  given  on  one  side  to  accept  an  offer,  the 
other  has  six  weeks  to  put  an  end  to  it.  One  party  cannot  be  bound 
without  the  other.  This  was  expressly  decided  in  Cooke  v.  Oxlt-i/, 
where  the  defendant  proposed  to  sell,  at  a  certain  price,  tobacco  to  tin; 
l)laintifl!',  who  desired  to  have  till  four  in  the  afternoon  of  that  day  to 
agree  to  or  dissent  from  the  proposal;  with  which  terms  the  defendant 
complied;  and  (he  plainlilf  having  aflcrwards  sued  him  for  non-delivery 
ol  the  tobacco,  Lord  Kctii/on  put  it  on  the  true  ground,  b}-  saying,  "  At 


102  ROUTLEDGE  V.  GllANT.    E.  T.  1828. 

the  time  of  entering  into  this  contract  the  engagement  was  all  one  side; 
the  otiiei-  parly  was  not  bound."  Bullcr  J.  said,  "  It  has  been  argued 
that  this  must  be  taken  to  be  a  complete  sale  from  the  time  the  condition 
was  complied  with:  but  it  was  not  complied  with;  for  it  is  not  stated  that 
the  defendant  did  agree  at  four  o'clock  to  the  terms  of  the  sale;  or  even 
that  the  goods  were  kept  till  that  time."  1  put  the  present  case  on  the 
same  ground.  At  the  time  of  entering  into  this  contract  tiie  engagement 
was  all  on  one  side.  In  Fayne  v.  Cave,  3  T.  It.  14S,  it  was  holden 
that  the  defendant,  who  had  bid  at  an  auction,  might  retract  his  biddingany 
time  before  the  hammer  was  down,  and  the  Court  said,  "  The  auctioneer 
is  the  agent  of  the  vendor,  and  the  assent  of  both  parties  is  necessary  to 
make  the  contract  binding;  that  is  signified  on  the  part  of  the  seller  by 
knocking  down  the  hammer,  which  was  not  done  here  till  the  defen- 
dant had  retracted.  An  auction  is  not  unaptly  called  locus  2}ce?iiient lie. 
Every  bidding  is  nothing  more  than  an  oiler  on  one  side,  which  is  not 
binding  on  either  side  till  it  is  assented  to.  But,  according  to  what  is 
now  contended  for,  one  party  would  be  bound  by  the  oiler,  and  the 
other  not,  which  can  never  be  allowed." 

These  cases  have  established  the  principle  on  which  I  decide,  namely, 
that,  till  both  parties  are  agreed,  either  has  a  right  to  be  off.  The  case 
oi  Adani'i  v.  Lindsell  is  supposed  to  break  in  on  them;  but  I  think  it 
does  not,  because  the  Court  put  it  on  the  circumstance  that  the  offer  was 
made  by  the  post,  and  say,  '•  If  the  defendants  were  not  bound  by  their 
cflTer  when  accepted  by  the  plaintiOs,  till  the  answer  was  received,  then 
the  plaiatilFs  ought  not  to  be  bound  till  after  they  liad  received  the  noti- 
fication that  the  defendants  had  received  their  answer  and  assented  to  it. 
And  so  it  might  go  on  adinjiiiituni.  The  defendants  must  be  consid- 
ered in  law  as  making  during  every  instant  of  the  time  their  letter  was 
travelling,  the  same  identical  ofler  to  the  plaintiffs;  and  then  the  contract 
is  completed  by  the  acceptance  of  it  by  the  latter."  If  they  are  to  be 
considered  as  making  the  offer  till  it  is  accepted,  the  other  may  say, 
"  make  no  further  ofier,  because  I  shall  not  accept  it;"  and  to  place  them 
on  an  equal  footing,  the  party  who  offers  should  have  the  power  of  re- 
tracting as  well  as  the  other  of  rejecting:  therefore  I  cannot  bring  myself 
to  admit  that  a  man  is  bound  when  he  says,  "  I  will  sell  you  goods  upon 
certain  terms,  receiving  your  answer  in  course  of  post."  However,  it 
is  not  necessary  to  touch  that  decision,  for  the  reasoning  of  the  Court 
coincides  with  the  principle  on  which  we  now  determine.  As  the  de- 
fendant repudiated  the  contract  on  the  fJth  of  April,  before  the  expiration 
of  the  six  weeks,  he  had  a  right  to  say  that  the  plaintifl'  should  not  enforce 
it  afterwards. 

But  upon  the  question  of  variance,  we  are  all  of  opinion  that  none  of 
the  counts  apply.  It  is  not  necessary,  perhaps,  that  the  termini  of  the 
plaintiff's  lease  should  be  set  out  with  precision:  but  the  variance  is  fatal, 
if  the  plaintiff  has  not  at  least  an  interest  which  will  enable  him  to  per- 
form his  contract.  The  variance  is  not  in  words,  but  in  substance. 
The  plaintiff  had  no  such  term  as  that  stated  in  the  first  and  third  counts. 
In  the  second,  he  states  he  had  a  contract  for  a  lease: — such  a  contract,  to 
be  valid,  must  be  in  writing,  and  he  cannot  be  said  to  have  had  it  unless 
lie  had  it  in  writing.  But  there  was  no  evidence  of  any  such  contract; 
and,  therefore,  upon  both  grounds,  the  rule  must  be  discharged. 


4  Bingham,  653.  103 

IkiRROUGH  J.  {a)  coincided  in  discharging  the  rule  on  the  ground  of 
variance. 

Gaselee  J.  If  this  case  had  rested  on  the  first  point,  I  should  have 
nishcd  for  time  to  consider  it;  but  on  the  ground  of  variance,  I  have  no 
doubt  that  this  rule  must  be 

Discharged, 
(a)  Park  J.  was  at  chambers. 


JONES  and  Another  V.  STUDD.— p.  663. 

Where,  tn  an  action  on  a  bill  of  exchange,  the  defendant  pleaded  a  rambling  de- 
murrable plea,  which  appeared  to  l)e  a  trick  on  the  face  of  it,  the  Conrt  or- 
dered it  to  be  struck  out  on  an  affidavit  of  its  falsehood,  giving  the  defendant 
leave  to  plead  de  novo,  and  requiring  him  to  try  at  the  next  sittings. 

Assumpsit.  In  the  first  count  of  the  declaration,  the  plaintiffs,  as 
indorsees,  sued  the  defendant  as  drawer  of  a  bill  of  exchange  for  857/. 
10^.  due  September  27ih,  1S26;  the  second  and  other  counts  were  for 
goods  sold,  money  lent,  &c. 

The  defendant  pleaded  7io?i  assumpsit  as  to  the  second  and  subsequent 
counts,  except  as  to  857/.  lOs.  parcel  of  the  sums  mentioned  in  those 
counts;  and  as  to  the  S57/.  lO^-.  in  those  counts,  aclio  non,  because  after 
the  making  of  the  supposed  promises  in  the  declaration  mentioned,  and 
before  the  suit  commenced,  the  defendant  drew  his  bill  on  Fraser  and  Co. 
in  favour  of  Lupton,  who  on  the  1st  of  April  1828  indorsed  to  plaintiffs, 
whereupon  defendant  became  liable  to  pay  plaintiffs  the  amount,  et  hoc 
vcrificare,  &.c. 

And  as  to  the  supposed  promise  and  undertaking  in  the  first  count; 
that  before  the  bill  of  exchange  therein  mentioned  became  due,  the 
])hiintiffs  indorsed  the  bill  to  persons  unknown  to  the  defendant,  and 
delivered  it  to  them;  and  that  it  remained  in  the  hands  of  such  persons; 
whereupon  the  defendant  became  liable  to  pay  them  the  sum  in  the  de- 
claration mentioned;  el  hoc  verificare,  &c. 

Upon  an  ailidavit  by  the  plaintilfs,  that  the  bill  indorsed  to  thcni 
by  Lupton  on  the  1st  of  A])ril,  a  few  days  after  it  was  made,  had  re- 
mained in  their  hands  till  it  was  discounted  by  their  bankers;  but  that 
being  afterwards  returned  by  the  bankers,  the  plaintiff  gave  them  a  check 
for  the  amount,  and  never  again  put  the  bill  in  circulation;  that  after  it 
became  due  they  received  a  letter  from  the  defendant,  praying  indul- 
gence. 

Tadihj  Serjt.  obtained  a  rule  nisi^  to  strike  the  second  and  third  j)leas 
out  of  the  jjlea  pleaded,  [a) 

Jones  Serjt.  who  shewed  cause,  contended,  that  if  these  pleas  were 
struck  out,  a  part  of  the  declaration  would  l)e  uiianswitred,  and  rctlicd  on 
Smith  V.  I}(iclcu)cU,  Ante,  512,  where  the  Court  resolved  not  to  interfere 
with  pleas  on  motion,  unless  they  were  a  mockery  of  tb(i  Court,  or  re- 
f|uircd  different  modes  of  trial,  or  were  likely  to  perplex  the  pl.iintiff 
unnecessarily  with  nice  points  of  law. 

The  Court  thought  this  a  plea  of  the  latter  description,  clearly  demur- 
rable, and  a  mere  trick  on  the  face  of  it. 

Gaselee   J.  said,  I  think  this  is  a  proper  and   merciful  application, 

(«)  Sic. 


104  Dixox  r.  IIoviLL.  E.  T.  1828. 

and  tliat  the  rule  oni2;lit  to  ho  mode  ahsoUilc,  with  leave  for  the  defen- 
dant to  plead  tic  novo,  uj)on  hi.->  uiulertakini:;  to  try  after  term.  Smith  v. 
Ji(ic/i'icc/i  was  decideil  with  reference  to  a  particular  plea  pleaded  in  that 
case;  but  the  present  case  falls  within  the  principle  laid  down  ia 
lilcwilt  V.  Marsden,  10  East,  237,  where  the  Court  said,  "That  there 
might  be  occasions  where  they  would  not  enter  into  any  question  as  to 
the  truth  of  a  plea  of  judgment  recovered,  pleaded  in  the  usual  form, 
ujion  motion,  but  await  the  time  for  j)roducing  the  roll  when  such  a  plea 
would  be  regularly  disproved;  but  they  expressed  great  indignation 
against  the  abuse  which  had  grown  up  of  late,  and  was  continually  in- 
creasing, of  loading  and  degrading  the  rolls  of  the  Court  with  sham  pleas 
of  this  nonsensical  nature,  making  them  the  vehicles  of  indecorous  jest- 
ing: by  which  it  sometimes  happened  that  the  time  of  the  Court,  which 
ought  to  be  better  employed,  and  was  sufficiently  engaged  with  the  real 
business  of  the  suitors,  was  taken  up  in  futile  investigations  of  nice  points, 
which  might  arise  on  demurrers  to  such  sham  pleas.  And,  therefore, 
in  order  ellectually  to  put  a  stop  to  this  practice  in  future,  they  made 
the  rules  absolute  in  this  and  several  other  causes,  wherein  the  same 
form  of  plea  had  been  filed." 

Rule  absolute. 


DIXON  and  Another  v.  HOVILL  and  Another.— p.  G65. 

Plaintiff  engaged  to  effect  for  defendant  an  insurance  with  such  names  as  should 
be  to  defendant's  satisfaction.  The  voyage  having  been  performed,  and  the  de- 
fendant never  having  required  to  see  the  names  on  the  policy:  Held,  that  in  an 
action  for  the  premium,  he  could  not  object  that  the  names  of  the  underwriters 
had  never  been  exhibited  to  him  for  his  approval. 

The  defendants  being  about  to  send  deals  by  the  plaintiffs'  ship,  the 
Brothers,  found,  thut  in  consequence  of  reports  against  her  sea-worthi- 
ness, they  could  not  effect  an  insurance  on  their  goods  at  so  low  a  rate 
as  if  they  vveresent  by  a  ship  of  good  character,  even  of  the  second  class; 
whereupon,  in  consideration  that  they  would  not  abandon  their  design  to 
send  the  deals  by  the  plaintiffs'  ship,  he  undertook  to  effect  an  insurance 
on  the  deals  at  the  ordinary  rate,  with  names  to  the  defendants'  satisfac- 
tion, pursuant  to  the  following  agreement: — 

''Messrs.  Ifovill  and  Sons, — I  hold  myself  responsible  to  effect  an 
insurance  for  your  goods  on  board  the  I'rothers  (Cape  of  Good  Hope,) 
valued  300/.,  at  40,s.  per  cent,  with  such  names  as  shall  be  to  your  satis- 
faction, you  paying  such  premium. 

"  Thomas  Dixon,  Senior. 

"P.  S. — If  the  j)remium  of  second  class  ships'  insurance  should  ex- 
ceed 40*.  premium,  such  premium  as  is  given  we  hav'e  no  objection  to 

pay- 

"J.  HoviLL." 

The  plaintiffs  being  thus  authorized  to  effect  an  insurance  on  the  deals, 
cfiected  an  insurance  in  the  name  of  lloskin  and  Russell,  brokers,  for 
1000/. ;  700/.  on  the  ship,  and  the  interest  in  the  remaining  300/.  declar- 
ed on  deals.  'I'he  policy  was  left  in  the  hands  of  lloskin  and  Russell, 
plaintiffs'  brokcis,  and  the  names  of  the  underwriters  were  never  shewi\ 


4  Bingham,  665.  105 

lo  the  defendant.  The  ship  sailed  in  November  1826,  and  performe  1 
her  voyage  to  the  Cape  ol'  Good  Hope  in  safety;  and  the  defendants, 
who  knew  that  their  goods  had  been  insured,  never  enquired  about  the 
names  of  the  underwriters,  or  took  any  exception  to ''their  suificiency. 
Having  afterwards  refused  to  repay  the  plaintiff  the  premium  which  he 
had  paid  for  them  on  the  poHcy,  he  souglit  to  recover  the  amount  in  this 
action  for  money  paid  to  the  defendants'  use.  At  the  trial  before  Gaselee 
J.,  London  sittings  after  Michaelmas  term,  upon  proof  of  the  foregoing 
facts,  a  verdict  was  found  for  the  plaintiff,  notwithstanding  it  was  object- 
ed, that  to  entitle  him  to  claim  against  the  defendants,  he  ought  to  have 
exhibited  to  the  defendants  the  names  of  the  underwriters,  to  ascertain 
whether  they  were  satisfactory  or  not,  b  -fore  he  effected  the  insurance  ; 
and  that  an  authority  to  effect  an  insurance  on  goods  did  not  warrant  the 
plaintiffs  to  effect  an  insurance  on  ship  and  goods.  But  upon  these 
objections,  E.  Lawes  Serjt.  having  obtained  a  rule  nisi  to  enter  a  non- 
suit instead  of  a  verdict, 

JVilde  Serjt.,  who  shewed  cause,  contended,  that  the  obvious  mean- 
ing of  the  agreement  was,  not  that  the  names  of  the  underwriters  should 
be  submitted  to  the  defendants  for  their  approbation,  but  that  they  should 
be  names  to  which  no  person  could  take  exception;  and  that  the  defend- 
ants having  had  the  advantage  of  the  policy  without  making  any  objec- 
tion, could  not  now  say  they  had  not  been  satisfied.  With  regard  to  the 
authority,  it  had  been  substantially  pursued;  for  the  interest  of  the  plain- 
tiffs in  the  deals  being  declared,  it  was  immaterial  whether  the  insur- 
ance was  separate  or  joined  in  an  insurance  on  the  ship. 

Lawes,  contra,  cited  Dosioell  v.  Impei/,  1  B.  &  C.  173;  statute  5  G. 
2.  c.  30;  Thirshy  v.  Helbot,  3  Mod.  272;  Humjjhries  v.  Carvalho, 
IG  East,  45. 

Park  J.  (a)  There  is  no  ground  for  the  objection  which  has  been 
made.  The  language  of  the  agreement  is,  "1  hold  myself  responsible 
to  effect  an  insurance  on  your  goods  on  board  the  Brothers  (Cape  of  Good 
Hope  J,  valued  at  300/.,  at  40^.  per  cent.,  with  such  names  as  shall  be  to 
your  satisfaction,  you  paying  such  premium."  It  never  was  intended 
that  the  names  of  the  underwriters  should  be  submitted  to  the  defend- 
ants for  previous  apjjrobation,  but  merely  that  they  should  be  unexcep- 
tionable names;  names  of  persons  competent  to  pay  in  case  of  loss. 
Then  the  insurance  was  effected  in  November  182();  the  voyage  to  the 
Cape  of  Good  Hope  was  successfully  completctl;  the  defendants  never 
called  for  the  names  of  the  underwriters;  thry  had  the  advantage  of  the 
protection  derived  Irom  the  insurance  during  the  whole  voyage,  and 
now  they  refuse  to  pay  the  premium.  The  objection  has  been  raised 
on  the  word  satisfdclion,  which  we  are  called  on  to  read  as  (tpproba- 
tion.  In  Thirsbjj  v.  Ilclhot,  and  ILiniphries  v.  Carvalhn,  approved 
is  the  word  employed.  As  to  Doswdl  v.  Iinpci/,  it  is  a  very  far-fetched 
analogy,  to  compare  the  language  of  a  statute  giving  commissioners 
authority  to  commit  where  an  answer  is  not  made  to  their  satisfaction, 
with  the  language  of  a  contract,  by  which  a  party  engages  to  procure  a 
policy  with  names  to  the  satisfaction  of  the  person  insured. 

With  respect  to  the  second  objection,  it  is  entirely  without  weight. 
The  insurance  was  effected  on  the  goods,  and  though  the  policy  was  in 

(a)  lirnt  C.  J,  was  j^oiu-  lo  rlumibrrs. 

VOL.    XV.  11 


106      Robertson  v.  M 'Doug all.  E.  T.  1828. 

the  hands  of  Ihe  hroker,  the  defeiulants  mii:!;ht  liavc  sued  on  it,  averring 
interest  in  tlieniselvcs,  and  a  court  of  equity  would  have  compelled  the 
broker  to  produce  it  for  tlie  purposes  of  the  suit. 

BrRKOUGH  J.  If  I  had  fully  understood  the  nature  of  the  objection, 
I  should  not  have  concurred  in  granting  a  rule  7iisi. 

Gaselee  J.  Whatever  right  the  defendants  might  originally  have 
had  to  enquire  into  the  sufficiency  of  the  underwriters,  it  is  too  late  for 
them  now  to  take  the  objection,  after  lying  by  so  long.    This  rule  must  be 

Discharged. 


ROBERTSON  v.   M'DOUGALL.— p.  670. 

The  j)laintiflr  havin,^  advertised  for  sale  abond,  executed  to  him  l)y  the  defendant, 
the  payment  of  which  had  Ijcen  resisted  in  a  long  course  of  litigation  in  which 
the  validity  of  the  bond  had  been  disputed,  the  defendant  published,  among  the 
persons  assembled  to  bid  for  the  bond  at  an  auction,  a  statement  of  all  the  cir- 
cumstances under  which  the  bond  was  given,  and  alluding  to  the  plaintiff,  con- 
cluded— "  His  object  is  either  to  extract  money  from  the  pocket  of  an  unwary 
purchaser,  or,  what  is  more  likely,  by  this  threat  of  publication,  to  extort  money 
from  me  :" 

Held,  that  this  exceeded  the  latitude  allowed  for  privileged  communications,  or 
observations  on  titles  by  a  party  interested;  and  that  it  was  a  libel,  although 
no  express  malice  was  proved. 

The  plaintiff  having  had  differences  with  one  ^neas  Morrison,  agreed 
to  submit  them  to  arbitration,  and  the  defendant,  a  London  attorney, 
became  suret}',  by  bond,  for  the  performance  of  the  award  by  ^Eneas 
Morrison. 

The  deed  of  submission,  bearing  date  June  1S23,  contained  a  proviso 
that  it  should  not  vacate  on  the  death  of  either  of  the  parties. 

-^neas  Morrison  died  in  September  1823. 

The  arbitrator  published  his  award  in  August  1824,  and  directed  a 
sum  of  money  to  be  paid  to  the  plaintiff;  which  not  having  been  paid, 
he  sued  the  defendant  on  the  above-mentioned  bond. 

The  defendant  suffered  judgment  by  default  in  the  King's  Bench,  but 
brought  error  in  the  Exchequer  Chamber,  upon  which  the  chief  ground 
of  defence  was,  that,  notwithstandingtheclause  in  the  deed  of  submission, 
the  award  was  void,  as  having  been  made  after  the  death  of  JEneas 
Morrison,  (4  Bingh,  435).  He  also  filed  a  bill  in  equity  to  restrain  the 
plaintiff  from  proceeding  on  the  bond,  and  to  compel  him  to  go  into  all 
the  matters  which  the  arbitration  had  comprehended. 

The  plaintiff,  on  his  part,  had  issued  an  execution  on  the  judgment  by 
default  in  the  King's  Bench,  which  execution,  as  issued  after  tiie  allow- 
ance of  a  writ  of  error,  was  afterwards  set  aside;  and  in  this  state  of 
affairs,  before  the  determination  of  the  writ  of  error,  or  of  the  bill  in 
equity,  the  plaintiff  advertised  the  defendant's  bond  for  public  sale  by 
INlr.  Hoggart,  the  auctioneer. 

The  defendant  had  previously  offered  1000/.  to  end  all  matters  in  dif- 
ference; the  plaintiff  demanded  1250/.,  which  defendant  refused  to  give, 
when  plaintiff  said,  "  I  will  advertise  the  bond,  and  he  shall  see  the  ad- 
vertisement under  his  nose." 

Hoggart  having  written  to  the  defendant  to  apprise  him  of  the  circum- 
stance, the  defendant  wrote   the  following  answer,  which,  with  some 


4  Bingham,  670.  107 

introductory  matter,  he  afterwards  printed  and  circulated  among  the 
persons  wlio  were  present  in  the  auction-room  when  the  bond  was  put 
up  for  sale. 

< '11  i h  ^pril  1S27. 

<<  Sir, — I  have  to  acknowledge  the  receipt  of  your  favour  of  this  date, 
and  have  to  thank  you  for  the  courtesy  of  the  communication.  1  have 
no  doubt  you  know  me  w^ell  enough  to  be  assured,  that  if  I  owed  to  Mr, 
Robertson  any  money  on  bond,  there  would  be  no  occasion  for  him  to 
resort  to  the  wicked  expedient  he  is  now  attempting.  His  object  is, 
either  to  extract  money  out  of  the  pocket  of  an  unwary  purchaser,  or, 
what  is  more  likely,  by  means  of  this  threat  of  publication  to  extort 
money  from  me. 

*<  That  the  bond  is  not  worth  one  farthing  is  clear  to  demonstration, 
and  as  there  is  an  existing  suit  in  equity  to  set  it  aside,  I  imagine  you 
will  not  think  you  acquit  yourself  properly  to  the  public,  without  you 
add  to  the  advertisement  for  the  sale  th;it  tliere  is  a  suit  in  dependence. 
You  ask  mc,  whether  I  would  choose  that  Ihc  bond  should  go  into  the 
market  ?  I  have  no  means  of  preventing  you  from  carrying  into  the  market 
an  article  of  no  value;  but  if  by  your  putting  to  me  the  above  question, 
you  meant  that  I  should  ofier  to  become  the  purchaser,  I  have  only  to  add, 
that  if  you  were  to  offer  it  to  me  for  10/.,  1  should  hesitate  about  accept- 
ing the  offer. 

"I  am,  &:c. 

"Alexander  INI'Dougall." 

Upon  this  the  plaintiff  commenced  the  present  action  against  the  de- 
fendant for  a  libel. 

The  declaration  stated:  "That,  before  the  time  of  committing  the 'said 
grievances  by  the  defendant,  to  wit,  on  the  1 7th  of  July  1S23,  at  Lon- 
don, &c.,  the  defendant  made  his  certain  bond  or  writing  obligator}^, 
sealed  wiili  his  seal,  and  thereby  acknowledged  himself  to  be  held  aiul 
firmly  bound  to  the  plaintiff  and  one  William  Roberts  in  the  sum  of  1000/. 

"That  the  plaintiff  was  desirous  of  selling,  as  far  as  he  lawfully  might, 
his  intere-t  in  the  said  bonrl  or  writing  ol)ligatory,  by  public  auction, 
and  for  that  purpose  he,  before  anrl  at  the  time  of  committing  the  said 
grievances,  to  wit,  on  the  3()th  of  April  1S27,  at  London,  &.C.,  caused 
the  said  bond  or  writing  obligatory,  and  his  said  interest  therein,  to  be, 
and  the  same  then  and  there  were,  put  up  to  sale  by  j)ublic  auction,  by 
one  Charles  Launoelot  Uoggnrt,  as  the  auctioneer  and  agent  of  the  plain- 
tiff, in  order  that  the  same  might  be  then  and  there  sold  for  the  plaintiff. 
Yet  the  defendant,  well  knowing  the  premises,  but  greatly  envying  the 
happy  state  and  condition  of  the  plaintiff,  and  contriving,  and  wickedly 
and  maliciously  intending  to  injure  the  plaintiff  in  his  good  name, 
fame,  and  credit,  and  to  bring  him  info  public  scandal,  infamy,  and 
disgrace  with  and  amongst  all  his  neigbhours,  and  other  good  and 
worthy  subjects  of  this  kingdom,  and  to  cimse  it  to  be  susjiccted  and 
believed  by  those  neighbours  and  subjects  that  he,  the  plainlid,  had  been, 
and  was,  guilty  of  the  ofi'ences  and  misconduct  thereinafter  mentioned 
to  have  been  charged  upon  and  imputed  to  the  |)lain(in',  and  to  cause  it 
to  be  suspected  and  believed  that  he  had  no  interest  in  the  said  bond  or 
writing  obligatory,  and  that  nothing  was  due  and  owing  thereon  from  tho 
defeiulant  to  the  plaintiff,  and  thul  the  sume  was  of  no  value,  and  to 
hinder  and  prevent  the  plaintiff  from  bclliiig  and  dis])o»ing  of  the  said 


108  UoUEItTSON  V.  M'DOUOALL.    E.  T.  1828. 

hoiul  or  w  '  iliii'j;()l)li^;atorv',  aiulof  hissald  intcreyl  thcrciti,  aiul  to  cause  and 
procure  the  plainlill'  to  sustain  and  be  put  to  divers  great  expenses  atteud- 
ing  the  said  exposure  to  sale,  and  to  vex,  harass,  oppress,  impoverish, 
and  wholly  ruin  him  the  plaint  ill,  heretofore  and  upon  the  said  exposure 
to  sale  of  the  said  bond  or  writing  obligatory,  and  of  the  plaintifl's  inter- 
est therein,  and  before  said  bond,  and  the  plaintifl's  interest  therein,  had 
been  sold  or  disposed  of,  to  wit,  on  the  day  and  year  last  aforesaid,  at 
London  aforesaid,  &.C.,  falsely,  maliciously,  and  injuriously  composed, 
printed,  and  published,  and  caused  to  be  composed,  printed,  and  pub- 
lished, a  certain  false,  scandalous,  malicious,  and  defamatory  libel  of  and 
concerning  the  plaintiff,  and  of  and  concerning  the  said  bond  or  writing 
obligatory,  and  the  said  exposure  to  sale  by  the  plaintifi",  in  which  libel 
was  and  is  contained  the  false,  scandalous,  defamatory,  or  libellous  mat- 
ter following,  that  is  to  say:  'The  1000/.  bond  advertised  for  sale  by 
Mr.  Hoggart,  of  Broad  Street.  The  above  is  advertised  as  if  it  were  a 
'money  bond  of  a  responsible  gentleman,  and  how  Mr.  Hoggart  can 
reconcile  it  to  his  character  to  suppress  the  facts  with  which  he  was  per- 
fectly acquainted,  is  for  him  to  explain.  The  short  circumstances  are 
these:  Mr.  yEneas  Morrison  of  Glasgow,  now  deceased,  and  John  Rob- 
ertson of  London,  recently  a  bankrupt,  had  occasion  to  refer  to  aibitra- 
tion  certain  disputed  accounts:  each  party  procured  a  friend  to  enter  into 
a  surety  bond  in  1000/.  for  the  due  performance  of  the  award  to  be  made: 
pending  the  arbitration,  Mr.  JNIorrison  died,  and  intimation  was  given 
that  the  surety  considered  himself  discharged;  Mr.  Robertson,  however, 
forced  the  matter  to  proceed,  and  the  arbitrators  having  differed,  he  pro- 
cured from  an  umpire  an  award  in  his  own  favour.  Proceedings  have 
been  instituted  in  equity  in  this  country,  and  also  Scotland,  to  set  aside 
this  award,  and,  of  course,  to  have  delivered  up,  to  be  cancelled,  the 
bond  of  the  surety  for  the  performance  of  it.  This  is  the  very  bond 
now  offered  for  sale  !  The  following  letter  will  shew  that  Mr.  Hoggart 
was  perfectly  aware  of  the  circumstances  previously  to  advertising  it.* 
(Here  followed  the  letter  before  set  out;  and  the  declaration  concluded, 
that)  "  by  reason  of  the  premises  the  plaintiff  had  been  greatly  injured 
in  his  good  name,  fame,  and  credit,  and  brought  into  public  scandal,  in- 
famy and  disgrace  among  his  neighbours,  and  other  good  and  worthy 
subjects,  many  of  whom  suspected  and  believed,  and  still  do  suspect  and 
believe,  the  plaintiff  to  have  been,  and  to  be,  guilty  of  the  said  of- 
fences and  misconduct,  and  have,  by  reason  of  the  committing  the  said 
grievances  by  the  defendant  as  aforesaid,  from  thence  hitherto  wholly 
refused,  and  still  do  refuse,  to  have  any  transaction,  acquaintance,  or 
discourse  with  the  plaintiff  as  they  before  were  used  and  accustomed  to 
have,  and  otherwise  would  have  had;  and  also  by  reason  thereof  divers 
of  the  liege  subjects  of  our  lord  the  king,  who  were  present  at  and  upon 
the  said  exposure  to  sale,  and  who  were  then  and  there  about  to  be  and 
become  purchasers  of  the  snid  bonrl  and  of  the  plaintiff's  interest  therein, 
and  who  might  and  would  otherwise  have  bid  for  and  purchased  the 
same,  were  then  and  there  deterred  and  prevented  from  bidding  for  and 
becoming  the  purchasers  of  the  said  bond,  and  of  the  plaintiff's  interest, 
and  then  and  there,  and  from  thence  hitherto,  have  respectively  wholly 
declined  to  purchase  the  same,  and  thereby  the  plaintiff  was  then  and 
there  hindered  and  prevented  fiom  selling  and  disposing  of  the  said 
bond,  and  of  his  said  intciest  therein,  and  hath  thereby  not  only  lost  and 


4  Bingham,  670.  109 

been  deprived  of  all  tiie  advantages  and  emoluments  which  he  might  and 
would  have  derived  and  acquired  from  the  sale  thereof,  but  hath  been 
forced  and  obliged  to  pay,  lay  out,  and  expend  divers  large  sums  of 
money,  amounting  in  the  whole  to  a  large  sum  of  money,  to  wit,  the 
sum  of  50/.  in  and  about  the  said  exposure  to  sale,  and  expenses  inci- 
dental thereto,  to  wit,  at  London,  &c,  and  the  plaintiff  hath  been,  and  is, 
by  means  of  the  premises,  otherwise  greatly  injured." 

The  general  issue  was  pleaded,  and  justifications  in  relation  to  various 
parts  of  the  foregoing  statement;  but  there  was  no  plea  alleging  it  to  be 
true  that  the  plaintiff  meant  to  take  in  the  unwary,  or  to  extort  money 
from  the  defendant.  At  the  trial  before  Gaseleei.,  London  sittings  af- 
ter Michaelmas  term,  the  plaintiff's  counsel  abandoned  the  charge  of 
slander  of  title,  and  confined  his  claim  to  the  personal  libel  on  the  plain- 
tiff, which  it  was  alleged  was  included  in  the  defendant's  letter  to  Hog- 
gart.  But  after  proof  of  the  foregoing  circumstances,  Gaselee  J.  told 
the  jury,  that  if  the  defendant  had  resorted  to  the  statement  concerning 
the  bond  as  a  pretence,  and  had  gone  out  of  his  way  to  attack  the  plain- 
tiff's character,  he  would  be  liable  to  answer  for  it  in  damages;  but  if, 
having  a  fair  ground  for  his  observations  on  the  bond,  he  had  only  in 
warmth  a  little  exceeded  the  bounds  of  temperate  statement,  he  stood 
excused. 

The  jury  were  discharged  upon  the  special  pleas,  and  found  a  verdict 
for  the  defendant  upon  the  general  issue. 

Spankie  Serjt.  obtained  a  rule  nisi  for  a  new  trial  on  the  ground,  that 
though  the  circumstances  in  which  the  defendant  was  placed  might  have 
justified  him  in  employing  strong  language  with  respect  to  the  bond,  he 
could  not  go  beyond  an  attack  on  the  title  of  that  instrument,  and  charge 
the  plaintiff  with  extortion  and  an  attempt  to  take  in  unwary  purchasers. 

Wilde  Serjt.  shewed  cause,  citing  Ilai'gruve  v.  Le  Breton,  4  Burr. 
2422;  Pitt  v.  Donovan,  1  M.  &  S.  639;  Fainnan  v.  Ives,  5  Ji.  &  A. 
642;  M^Dougal  v.  Claridge,  1  Campb.  267;  Dunman  v.  Bigg,  1 
Campb.  267,  n. 

Spankie,  in  reply,  referred  to  Brown  v.  Croom,  2  Stark.  N.  P.  C. 
297. 

JJest  C.  J.  This  was  an  action  to  recover  damages  for  a  libel,  and  it 
is  material  to  state  that  the  declaration  contains  a  charge  against  tiie  de- 
fendant for  a  personal  libel,  the  effect  of  which  is  to  injure  the  plaintiff  in 
his  character.  There  is  also  a  charge  lor  slander  of  title,  but  that  may 
be  considered  as  out  of  the  question,  having  been  abandoned  at  the  trial; 
and  the  rpiestion  is,  whether  this  libel  on  the  plaintifPs  character  is  ex-^ 
cused  by  the  circumstances  under  which  it  was  published.  If  an  individ- 
ual, unauthorised,  publishes  reflections  on  a  man's  character,  and  injury 
results  from  the  publication,  the  law  does  not  cncjuire  into  his  motives. 
But  if,  in  the  performance  of  a  duty,  he  makes  charges  honestly,  even 
though  he  express  himself  with  warmth,  he  is  excused;  for  the  law  has 
respect  to  human  infirmity:  he  must,  however,  confine  himself  to  what 
the  occasion  requires,  for  if  he  goes  beyond  it,  imputing  base  motives,  he 
is  not  excused  unless  he  justifies  himself  by  shewing  the  trutli  ot  his  as- 
sertions. Now,  what  is  the  publication  in  question?  "The  1000/.  bond 
advertised  for  sale  by  Mr.  Iloggart  of  liroad  Street.  The  above  is  ad- 
vertised as  if  it  were  a  monny  l)ond  of  a  responsible  gentleman,  and  how 
Mr.  Iloggart  can  icconcilc  it  to  his  character,  to  suppress  the  facts  with 


no  ROHERISON  V.  M*DoircALL.   E.  T.  1828. 

Avhich  lie  wa?  perfectly  acquainted,  is  for  him  to  explain.  The  short 
circumstances  are  these.  Mr.  ^Eneas  Morrison  of  Glasgow,  now  deceas- 
ed, and  John  Roheilson  of  London,  recently  a  bankrupt," — that  was  a 
fact  he  was  authorised  to  state;  but  he  goes  on,  and  after  stating  the  other 
circumstances  attending  the  bond,  concludes  with  the  letter  addressed  to 
Hoggart,  in  which  he  says,  "1  have  no  doubt  you  know  mc  well  enough 
to  he  assured  that  if  I  owed  to  Mr.  Robertson  any  money  on  bond,  there 
would  be  no  occasion  for  him  to  resort  to  the  wicked  expedient  he  is  now 
attempting.  His  object  is,  either  to  extract  money  out  of  the  pocket 
of  an  unwary  purchaser,  or  what  is  more  likely,  by  means  of  this  threat 
of  publication,  to  extort  money  from  me."  What  occasion  had  the  de- 
fendant to  introduce  the  latter  branch  of  tlie  sentence?  It  could  only  be 
malicious;  that  is,  in  the  legal  sense  of  the  term;  in  other  words,  mis- 
chievous and  unjust;  and  if  so,  the  jury  were  not  authorized  to  ftnd  the 
verdict  they  have  found.  We  have  been  referred  to  many  cases  of  slan- 
der of  title,  but  they  are  all  distinguishable  from  cases  of  personal  slander, 
because  an  action  lor  slander  of  title  is  not  maintainable  unless  special 
damage  ije  shewn.  In  fValson  v.  Reynolds,  1  Moody  &  Maikin,  I,  it 
was  holden,  that  the  attorney  of  a  party  claiming  title  to  premises  put 
up  for  sale,  is  not  liable  to  an  action  for  slander  of  title,  if  he  bona  fide., 
though  without  authority,  makes  such  objections  to  the  seller's  title  as  his 
principal  would  have  been  authorised  in  making:  but  there  the  words 
were  not  actionable  in  themselves,  and  that  distinction  disposes  of  all 
the  cases  on  the  subject  of  slander  of  title.  My  judgment  in  Fairman 
V.  Ives,  if  looked  at  attentively,  supports  our  decision  upon  the  present 
occasion.  In  that  case  a  petition  was  addressed  to  the  secretary  at  war 
by  the  creditor  of  an  oflicer  in  the  army,  bona  fide,  and  with  a  view  to 
obtain  through  his  interference  the  payment  of  a  debt  due.  The  libel 
was,  "Your  petitioner  solicits  your  Lordship's  well  known  justice  and 
disposition  to  benevolence  to  be  extended  towards  him,  by  directing  an 
officer  in  his  majesty's  service,Captain  W.B.  Fairman,  to  discharge  a  debt 
which  has  been  due  to  )'0ur  petitioner  above  four  years,  and  although 
frequently  applied  for,  has  never  been  noticed  by  Captain  Fairman,  but 
unjustly  and  unfairly  he  has  deprived  your  petitioner  of  any  redress  ex- 
cejit  through  your  Lordship's  humane  consideration,  by  giving  an  ad- 
dress, as  will  appear  by  the  enclosed,  where  he  had  no  credit,  nor  even 
was  known.  Your  petitioner  begs  most  humbly  to  enclose  copies  of  two 
bills  of  exchange,  one  for  100/.,  and  the  other  for  75/.  10^.,  which  your 
petitioner  received  in  payment  for  money,  and,  when  due.  Captain  Fair- 
man  had  given  no  order  to  pay  them,  either  at  his  agents,  or  at  the  address 
of  his  bills,  where  your  petitioner  was  informed  he  did  not  reside,  nor 
did  they  know  any  thing  about  his  bills.  Since  that  period  your  peti- 
tioner has  repeatedly  written  to  Captain  Fairman,  who,  although  he  has 
received  the  letters,  has  never  noticed  them,  and  has  concealed  himself 
from  a  just  and  lawful  demand:  your  petitioner  has  no  other  wish  in 
addressing  your  Lordship,  but  that  your  influence  may  be  extended 
towards  him,  by  ordering  Captain  Fairman  to  discharge  his  debt." 

There  was  nothing  objectionable  in  this:  no  general  abuse;  no  allega- 
tion that  Captain  Fairman  was  a  swindler,  nor  that  he  had  attempted  to 
extort  money;  but  it  was  a  bare  statement  of  facts;  and  tlie  Lord  Chief 
Justice  told  the  jury,  that  if  they  thought  the  petition  contained  only  a 


4  Bingham,  670.  lU 

fair  and  honest  statement  of  facts,  according  to  ilie  understanding  of  the 
party  who  sent  it,  they  ought  to  find  a  verdict  for  ilie  defendant,  ia  that 
I  agree;  but  in  that  it  difl'ers  altogether  from  the  present  case,  because 
the  defendant  here,  after  stating  all  the  faats,"  goes  on  to  say,  "his  ob- 
ject can  only  be  to  extract  money  from  an  unwary  purchaser,  or,  what 
is  more  likely,  by  this  threat  of  publication  to  extort  money  from  me." 
In  Fairnian  v.  Ives,  the  Chief  Justice  said,  "I  think  that  it  was  a  good 
answer  to  the  action,  upon  the  plea  of  not  guilty,  for  the  defendant  to 
shew  that  the  paper  in  question  was  addressed  to  the  secretary  at  war, 
bona  fide  for  the  purpose  of  obtaining  redress,  and  not  for  tiie  purpose 
of  slandering  tlie  piaintiti'."*  The  othcrjudges  all  hold  the  same  language; 
all  confine  the  justification  to  statements  of  fact.  If  such  statements  are 
made  even  with  warmth,  supposing  them  to  be  made  bona  fide,  that  will 
not  subject  the  party  to  an  action;  but  he  must  not  go  beyond  facts,  and 
charge  a  person  with  unwarrantable  motives.  In  M^Doiigal  v.  Cla- 
ridge,  the  words  of  the  libel  are  not  set  out,  so  that  we  cannot  judge  whe- 
ther they  exceeded  the  due  limit  or  not.  Dunman  v.  Bigg  goes  fur- 
ther than  the  present  case:  there  the  defendant  told  a  surety  who  was 
responsible  to  him  for  a  debt  of  the  plaintiff",  incurred  for  beer  sold  by  the 
defendant,  that  the  plaintiff  wished  to  cheat  him;  that  he  had  sent  back, 
as  unmerchantable,  beer  which  he  had  himself  adulterated;  that  he  was 
a  rogue  and  a  rascal,  &.c.  Lord  Ellenborough  said  only  that  he  was 
inclined  to  think  that  this  was  a  privileged  communication,  and  a  juror 
was  withdrawn,  so  that  the  counsel  for  the  defendant  does  not  appear  to 
have  been  confident  that  the  learned  Judge's  ruling  would  have  been 
supported  if  discussed  in  banc.  J3ut  Brown  v.  Croom  is  in  point,  and 
founded  on  the  true  principle,  for  Lord  Ellenborough  said,  "  I  have  only 
adverted  to  cases  in  order  to  guard  against  deciding  contrary  to  the  prin- 
ciples laid  down  in  them ;  but  I  decide  this  case  on  tlie  ground,  that  though 
a  party  may  write  freely  on  a  subject  in  which  he  is  concerned,  may 
state  facts,  and  even  express  himself  with  warmth,  he  must  not  go  be- 
yond that  which  the  occasion  requires,  and  criminate  others  unnecessari- 
ly. It  was  unnecessary  for  the  defendant  in  the  present  case  to  crimi- 
nate the  plaintiff,  even  though  he  might  be  unable  to  avoid  expressing 
himself  with  warmth;  it  was  mischievous  and  unjust  to  criminate  him  in 
the  way  he  has  done,  and,  therefore,  he  is  not  protected  l)y  the  situation 
in  which  he  stood." 

Park  J.  I  am  anxious  not  to  draw  too  strict  a  line  on  confidential 
communications,  or  statements  called  for  in  the  course  of  business.  But 
the  Court  must  take  care  that  men  do  not  employ  such  statements  to  the 
injury  of  their  neighbours,  and  the  libel  complained  of  here  goes  far  be- 
yond the  business  in' hand.  If  the  paper  had  been  confined  to  thr  first 
paragraph,  it  would  have  been  witliin  the  reasoning  of  the  cases,  anil  the 
law  of  the  country.  M'Dougidl  had  a  clear  riglit  to  stnte  his  olijoctions 
to  the  sale  of  the  bond;  and  to  slate  them  in  strong  laiiguiige.  ^Vith  re- 
gard to  that  he  has  stated  the  circumstances  under  whicli  the  bond  w.is 
given,  the  bankruptcy  of  the  plaintiff,  and  the  objenlions  in  law  which 
he  considered  as  affecting  the  validity  of  the  bond:  he  had  a  right  to 
state  that,  within  the  principle  established  by  the  case  of  Hargrave  v. 
Le  Breton.  There,  the  agent  for  a  party  interested,  prevented  the 
sale  of  an  estate,  by  proclaiming  that  a  person  who  had  morfgngod  it  to 


ir2  Honr.KTSoN  /•.  M^DounAi.T..   K.  T.  1828. 

the  plaintiflhiul  hecoine  hankriipt.  That  was  nothino;  more  than  a  state- 
monl  of  fart,  whicli  a  party  iiitiTcstcd  was  hohicii  warranted  in  making, 
aiul  that  would  liave  warranted  JNI'Dougall  if  he  had  stopped  at  the  first 
j)aragrapl>.  IJut  1  cannot  conceive  how  that  which  follows  is  not  to  be 
tieemed  a  libel: — *•  The  wicked  expedient  he  is  now  attempting." — 
"His  object  is  to  extract  money  out  of  the  pocket  of  an  unwary  pur- 
chaser, or,  what  is  more  likely,  by  means  of  tills  threat  of  publication, 
to  extort  money  from  me."  A  grosser  liijcl  on  a  man  in  the  mercantile 
world  couKl  not  i)e  fabricated.  In  deciding  that  the  defendant  is  not 
excused,  we  trench  on  no  case  which  has  been  cited.  Fairman  v.  Ives 
is  clearly  distinguishable;  there,  a  petition  aildresscd  by  the  creditor  of 
an  oflicer  in  the  army  to  the  secretary  at  war  bona  fide,  and  with  a  view 
of  obtaining  through  his  interference  payment  of  a  debt  due,  was  holdeii 
to  be  no  libel,  thougli  derogatory  to  the  olficer's  character,  being  con- 
fmed  (o  a  statement  of  facts  which  the  creditor  was  entitled  to  represent. 
'J'hat  was  no  such  libel  as  the  present.  Is  a  man  to  go  into  the  auction 
mart  and  read  such  a  paper  as  this  publicly?  It  is  ridiculous  to  state 
such  a  proposition.  I<o  doubt  M'Dougall  was  bound  to  make  the  state- 
ment in  the  first  part;  but  he  had  no  right  to  go  out  of  his  way  to  im- 
pute wickedness  and  extortion  to  the  plaintiff.  As  to  the  previous  bick- 
ering between  the  parties,  that  could  not  be  brought  forward  as  a  set-off 
to  the  libel,  but  at  the  utmost  as  a  circumstance  to  operate  in  mitigation 
of  damages.  In  M^Dous^al  v.  Claridge,  the  defendant's  communica- 
tion was  held  to  be  privileged,  because  he  was  really  writing  confiden- 
tially about  a  matter  in  which  he  was  cojiccrned,  and  charged  the  plain- 
tiff with  improper  conduct  in  manageoient  of  it:  he  had  a  right  to  do  so, 
and  a  juror  was  withdrawn.  Godson  v.  Home,  1  B.  &  B,  7,  is  pre- 
cisely in  point;  there,  the  defendant  having  written  a  letter,  blaming 
the  person  to  whom  it  was  addressed  for  em|)loying  the  plaintiff  to  sue, 
added,  **  If  you  will  be  misled  by  an  attorney,  who  only  considers  his 
own  interest,  you  will  have  to  repent  it.  You  may  think,  when  you  have 
ordered  your  attorney  to  write  to  Mr.  B. ,  he  would  not  do  any  more 
without  your  further  orders;  but  if  you  once  set  him  about  it,  he  will 
go  to  any  length  without  further  orders."  And  Richardson  J.  said, 
*'  I  cannot  say  that  I  left  it  to  the  jury,  whether  this  was  a  confidential 
communication;  I  thought  it  exceeded  the  line  of  confidential  commu- 
nication. If  a  man,  giving  advice,  calls  another  a  thief,  surely  it  is  not 
necessary  to  leave  it  to  the  jury,  whether  such  language  is  a  confidential 
communication.  I  left  it  to  the  jury  to  say,  whether  this  was  a  caution 
against  employing  attornies  in  general,  or  against  the  plaintiff  in  particu- 
lar." I  think  the  language  used  by  this  defendant  exceeds  the  line  of 
privileged  communications,  and  that,  therefore,  tlTc  rule  must  be  made 
absolute. 

BuRROTTGH  J.  I  had  read  the  record,  expecting  that  I  should  have 
tried  the  cause;  and  I  thought,  supposing  the  words  to  be  proved,  that 
the  trial  could  be  no  more  than  a  writ  of  inquiry.  The  words  are  clearly 
libellous.  "The  wicked  expedient  he  is  now  attempting," — "his  ob- 
ject is,  to  extract  money  out  of  the  pocket  of  an  unwary  purchaser,  or, 
what  is  more  likely,  by  means  of  this  threat  of  publication,  to  extort 
money  from  me."  Nobody  of  common  sense  can  doubt  that  such  ex- 
pressions constitute  a  very  aggravated  libel.  There  is  no  necessity  for 
proving  malice  in  such  a  case;  the  law  implies  it,  and  it  is  not  a  qucs- 


4  BixcHAM. 670.  113 

lion  for  the  jury.      If  this  liad  hccn  an  indictnienl  the  Jiulgc  must  have 
told  the  jury  the  words  were  clearly  a  libel. 

Gaselee  J.  If  the  jury  did  wrong  I  was  in  fault;  for  I  left  it  to  them 
to  say,  whether,  by  the  expression,  '•'  His  object  is  to  extract  money  out 
of  the  pocket  of  an  unwary  purchaser,  or,  what  is  more  likely,  by  means 
of  this  threat  of  publication,  to  extort  money  from  me,"  the  defendant 
hail  gone  purposely  out  of  his  way  to  attack  the  plaintiff's  chai'acter,  or 
whether,  having  a  fair  ground  for  his  observations  on  the  bond,  he  had 
in  warmth  a  little  exceeded  the  bounds  of  temperate  statement;  and  un- 
til corrected  to-day,  I  should  have  come  to  the  same  conclusion  as  the 
jury.  This  bond  was  in  litigation;  ISI'Dougall  had  offered  1000/.  to 
end  all  matters;  but  Robertson  demanded  1250/.,  which  M'Dougall  re- 
fused to  give.  Robertson  then  said,  "  I  will  advertise  the  bond,  and  he 
shall  see  the  advertisement  under  his  nose."  Iloggart,  the  auctioneer, 
then  wrote  to  M'Dougall,  to  request  him  to  pay,  in  order  to  prevent  the 
bond  from  coming  into  the  market;  INl'Dougall  answered  that  it  was  of 
no  value,  and  that  he  would  not  purchase  it  at  the  sum  of  10/.  He  was, 
therefore,  in  some  degree  warranted  in  supposing  that  the  object  of  ad- 
vertising for  sale  was,  to  induce  him  to  buy.  To  that  extent  his  letter 
appeared  to  me  to  be  a  privileged  communication,  and  that,  at  all  events, 
it  was  proper  to  leave  it  to  the  jury  to  consider,  whether  the  objection- 
able words  had  been  written  with  a  malicious  intention,  or  escaped  him 
in  warmth  upon  a  justifiable  occasion;  and  if  they  thought  he  had  pur- 
posely gone  out  of  his  way,  to  consider  the  amount  of  the  damage.  Pro- 
bably I  did  wrong;  but  I  am  not  at  this  moment  prepared  to  say  so, 
(hough  I  am  not  presumptuous  enough  to  think  that  my  own  opinion  is 
the  more  correct. 

Rule  absolute. 


DOUGLAS  and   Annihfr,  Assignees  of  STEIN  and  SMITH,  ■Bank- 
rupts, V.  FORliKS  r,  Kxucutor  of  .JAMICS  IHINTER.— p.  GSG. 

An  action  lies  in  the  Enf^lisli  cnurts  on  a  Scotch  judgment  of  /lornini^  against  a 

Scotchman  horn. 
Where  the  testator  resided  and  died  abroad,  Held,  liis  executor  in  I'.ngland  might 

he  sued  within  six  yearsiifter  taking  out  ])rol);ite. 

Assumpsit  on  two  Scotch  decreets.  The  fust  coimt  of  the  declara- 
tion (which  contaiiiffi  twenty-nine)  was  as  hdlows: — 'i'hat  heretofore,  to 
wit,  on  the  2')\\\  day  of  Fcbruarv  1^02,  a  certain  d(!cre(;  was  made  and 
pronounced,  in  and  by  the  Court  of  oiw  lord  the  then  king,  before  the 
I^ords  of  Council  and  Session  at  Edinburgh,  in  that  part  of  the  united 
kingdoTi  of  Great  Britain  and  Ireland  called  Scotland,  to  wit,  at  fjondon, 
in  and  concerning  a  certain  action  then  de])ending  in  the  same  court,  at 
tlie  instancf;  of  .lohn  Stein,  Thomas  Smilii,  Robert  Slein,  James  Stein, 
and  Robcrrl  Smith,  before  liiey  br-catne  bankrii|)ls,  against  .Fames  Hunter, 
wlicreby  the  Lords  of  Coimcil  and  Session  aforesaid,  did  then  and  there, 
decern  and  ordain  said  .lames  Hunter  to  make  payment  to  said  .Toha 
Stein,  Thomas  South,  Rob(Mt  Stein,  .Tames  Stein,  and  Robert  Smith, 
l)efore  they  became  bankrupts  as  aforesaid,  of  a  certain  sum  of  money, 
to  wit,  4-17/.  C)S.  3U.  sterling  money  of  Great  Britain,  and  annual  rent, 

VOL.    XV.  15 


114  Douglas  v.  Foukkst.  E.  T.  1828. 

that  is  to  say,  lr<fal  interest  tlicrcof,  IVoin  a  certain  day,  to  wit,  the  ISth 
of  November  liSOl  and  until  payment,  together  with  50/.  of  like  ster- 
ling money,  as  the  expense  of  process,  besides  1/.  Os.  0^(L  sterling  mo- 
ney of  Great  Britain,  being  the  full  dues  of  extracting  that  decree,  as  by 
said  decree  remaining  in  said  Court  of  Session  at  Edinburgh  aforesaid 
more  fully  ajipcars,  which  said  decree  remains  in  full  force  and  wholly 
unsatislied,  wliereby  said  James  Hunter,  in  his  lifetime,  became  liable  to 
pay  to  saici  John  Stein,  Thomas  Smith,  Robert  Stein,  James  Stein,  and 
Robert  Smith,  before  they  became  bankruj)ls  as  aforesaid,  said  sums  of 
money  so  decreed  to  be  jiaid  as  aforesaid,  together  with  such  interest  as 
aforesaid,  on  said  sum  of  447/.  Gs.  3d.,  according  to  said  decree,  when 
the  said  James  Hunter  should  be  thereunto  afterwards  requested;  and 
being  so  liable,  said  James  Hunter,  in  his  lifetime,  in  consideration 
thereof,  afterwards,  to  wit,  on  said  25th  February  1S02,  to  wit,  at  Lon- 
don aforesaid,  undertook,  and  then  and  there  faithfully  promised  said 
John  Stein,  Thomas  Smith,  Robert  Stein,  James  Stein,  and  Robert 
Smith,  before  they  became  bankrupts  as  aforesaid,  to  pay  them  said 
sums  of  money-  so  decreed  to  be  paid  as  aforesaid,  together  with  such 
interest  as  aforesaid,  when  he  the  said  James  Hunter  should  be  tiiere- 
unto  afterwards  requested. 

The  next  eight  counts  were  on  the  same  decreet,  varying  the  state- 
ment of  it,  particularly  with  respect  to  the  day  from  which  interest  was 
to  be  paid,  and  laying  the  promises  from  Hunter  to  the  bankrupts  before 
their  bankruptcy. 

The  next  six  laid  the  promises  from  the  defendant,  as  executor,  to 
the  plaintiffs,  as  assignees,  after  the  bankruptcy  of  Steins  and  Smiths, 
and  the  death  of  Ilunter. 

The  next  seven  were  on  a  decreet  of  75/.  (with  20/.  expense  of  pro- 
cess, and  1/.  75.  lid.  of  extracting,)  in  favour  of  Smith,  with  promises 
from  Hunter  to  Smith  before  he  became  bankrupt. 

The  last  five  laid  the  promises  in  respect  of  this  decreet,  from  the  de- 
fendant as  executor,  to  the  plaintills  as  assignees,  after  the  bankruptcy 
of  Smith,  and  the  death  of  Hunter. 

The  defendant  pleaded  the  general  issue  and  the  statute  of  limitations. 
The  plaintiffs  replied,  that  when  the  causes  of  action  accrued  Hunter 
was  beyond  seas,  where  he  continued  and  died,  in  1817,  and  that  they 
sued  out  their  capias  ad  respondendum,  and  brought  their  suit  within 
six  years  next  after  the  defendant  took  upon  himself  the  burthen  of  the 
execution  of  the  last  will  and  testament  of  Hunter  in  Great  Britain,  the 
defendant  having  been,  ever  since  the  death  of  Hunter,  the  only  person 
having  authority  to  execute  the  said  last  will  and  testament  in  Great 
Britain,  and  there  having  been  no  other  executor  in  Great  Britain. 

The  defendant  rejoined  that  the  plaintifls  did  not  sue  out  their  writ 
within  six  years  next  after  the  defendant  first  took  upon  himself  the 
burthen  of  the  execution  of  the  said  will  and  testament;  upon  which, 
issue  was  joined. 

At  the  trial  before  Best  C.  J.,  London  sittings  after  last  Trinit)^  term, 
it  appeared  that  in  1799,  Hunter,  a  native  of  Scotland,  acknowledged 
himself  to  be  indebted  to  Stein,  Smith,  and  Co.  of  Edinburgh,  in  the 
sum  of  447/.  Gs.  3d.,  and  to  Smith  in  the  sum  of  75/. 

He  went  that  year  to  India,  whence  he  never  returned,  but  died  there 
in  1817. 


4  BixGHAM,  686.  115 

In  February  1802,  two  decrees  were  pronounced  against  him  for  these 
two  sums  in  tlie  Court  of  Session,  one  at  the  instance  of  Stein,  Smith, 
and  Co.,  the  other  at  the  instance  of  Smith.  The  former  was  as  followsj 
and  the  latter  in  the  same  form. 

"At  Edinburgh,  the  25th  day  of  February  1S02,  anent  the  summons 
and  action  raised,  intended,  and  pursued  before  the  Lords  of  Council  and 
Session,  at  the  instance  of  Messrs.  Stein,  Smith,  and  Co.  merchants  in 
London,  and  William  Inglis,  writer  to  the  signet,  their  mandatory 
against  James  Hunter,  son  of  the  deceased  James  Hunter,  vintner  in 
Edinburgh,  late  clerk  to  the  pursuers,  now  abroad,  which  summons 
maketh  mention  that  James  Hunter,  son  of  the  deceased  James  Hunter, 
vintner  in  Edinburgh,  late  clerk  to  the  pursuers,  now  abroad,  is  justly 
indebted  and  owing  to  the  pursuers  the  sum  of  447/.  6^.  3d.  sterling,  as 
the  amount  of  an  account  to  be  produced  in  process,  and  here  held  as 
repeated  brevitatis  causa,  and  annual  rent  of  said  sum  from  and  since 
the  day  of  ;  and  although  the  pursuers  have  frequently 

desired  and  required  the  said  James  Hunter,  defender,  to  make  payment 
to  them  of  foresaid  sum  of  447/.  G^.  od.  sterh'ng,  and  annual  rent  thereof 
from  the  period  before  mentioned,  yet  he  refuses,  at  least  delays,  so  to 
do.  Therefore  the  said  James  Hunter,  defender,  ought  and  should  be 
decerned  and  ordained  by  the  decree  of  the  Lords  of  Council  and  Ses- 
sion to  make  payment  to  the  pursuers  of  the  said  sum  of  447/.  Gs.  3d. 
sterling,   and   annual  rent  thereof  from   and  since  the    said  day 

of  ,  and  till  payment,  together  with  the  sum  of  50/.   sterling, 

or  such  other  sum  as  the  said  Lords  shall  modify  as  the  expense  of  pro- 
cess, besides  the  fees  of  extracting  the  decree  to  follow  hereon,  conform 
to  the  laws  and  daily  practice  of  Scotland  used  and  observed  in  the  like 
cases  in  all  points  as  is  alleged:  and  anent  the  charge  given  in  virtue  of 
the  foresaid  summons,   (by  a  messenger  at  arms,  in  manner  prescribed 
by  law,  to  the  said  James  Hunter,  defender,  at  the  market  cross  of  Ed- 
inburgh, pier  and  shore  of  Leith,  as  being  furth  of  Scotland  at  the  time,) 
upon  the  ISth  day  of  November  ISOl,  to  have  compeared  before  the 
said  Lords  on  two  certain  diets  bygone  to  have  answered  at  the  instance 
of  the  pursuers  in  the  said  matter,  and  heard  and  seen  the  premises  veri- 
fied  and    proven,    and  decreet  and  sentence    given    and    pronounced 
therein,  conform  to  the  conclusions  of  the  foresaid  summons,  or  else  to 
have  alleged  a  reason. djle  cause  in  the  contrary,   with  certillcation  as  in 
the  said  «uinmons  and  execution  thereof  is  expressed;  the  jjursuers  com- 
pearing by  Messrs.  Henry  David  Inglis  and  James  Clordon,  advocates, 
their  procurators,  who  for  them  produced  in  presence  of  the  said  Lords 
account  lybelled  on  of  the  contents  foresaid,  and  the  defender  having 
been  lawfully  summoned  to  this  action  as  aforesaid,  and  failing  to  appear, 
the  foresaid   summons,  execution  thereof,  account  Iyi)clled  on  and  pro- 
duced in  absence  of  the  defender,  and  sfejis  of  procedure  after  related,, 
being  all  at  lengtli  read,  heard,  seen  and  considered  by  the  said   Lords, 
and  they  being  therewith  well  and  ripely  advised,  the  l^ords  of  Council 
and  Session  decerned  and  ordained,  and  licreby  decern  and  ordain  the 
said  James  Hunter,   defender,  to  make  payment  to  the  pursuers  of  tho 
foresaid  sum  of  447/.  G.y.  3d.  sterling,  and  annual  rent  thereof,  from  and 
since  the  said  day  and  till  payment,   together  with  tho 

sum  of  50/.  sterling  as  the  expense  of  process,  besides  the  sum  of  1/.  0.y. 
^d.  sterling,  being  the  full  dues  of  '.-xtracling  this  decreet  j  because  after 


IIG  DOIK.I.AS  L'.    I'OUKKST.   E.  T.   1828. 

elapsing  of  the  ilic'ts  ;in(l  coin|)caiai)cc,s  contaiiuxl  in  the  arorcsaitl  sum- 
mons liio  sanjo  was  tabkxl  and  called  in  tlic  Outer  House  in  coinnion 
lorni,  and  in  respect  of  the  absence  ol  tlic  defendiM*  was  apjiointed  to  the 
roll,  anil  being  accordingly  enrolleil  in  the  regulation  roll  lor  the  Outer 
House,  by  eourse  whereof  the  same  came  in  and  was  called  on  the  25lh 
tlay  of  February  180^,  the  day  and  date  hereof,  in  presence  of  Lord 
Arn)ailale,  Ordinary  in  the  Outer  House  for  the  time,  when  the  said 
]Mr.  Henry  David  Inglis,  for  tlie  pursuers,  resumed  the  lybel,  and  craved 
decreet  in  terms  thereof:  and  the  defender  having  not  only  been  lawfully 
sunin)oncd  to  the  action  as  aforesaid,  but  also  oft  and  divers  times  this 
ilay  ])ublicly  called  by  a  macer  from  the  bar,  as  use  is,  yet  he  failed  to 
nj)pear,  as  was  clearly  understood  by  the  Lord  Ordinary.  In  respect 
of  all  which  his  Lordship  held  the  defender  as  confest  on  the  verify  of 
the  lybel,  and  account  lybelled  on  and  protluced  and  decerned  in  ab- 
sence, intermsofthe  lybel.  Antl  so  the  said  Lords  gave  and  pronoun- 
ced their  decreet  and  sentence  in  the  said  matter  in  manner  aforesaid, 
and  ordain  letters  of  horning  on  fifteen  days  charge,  and  all  other  exeolls 
needful  to  ])ass  hereon  in  form  as  efTeirs.  Extracted  upon  this  and  the 
three  preceding  pages  by 

"Alexander  Menzies." 

By  a  decree  of  the  same  couit  of  July  ISO  J,  that  court  adjudged  that 
certain  heritable  property  to  which  Hunter  was  entitled  in  Scotland, 
should  belong  to  Smith,  Stein,  and  Co.,  in  payment  and  satisfaction  of 
the  sum  of  447/.  G^.  3(/.  with  interest  from  the  lllh  of  June  1799:  and 
by  another  decree  of  the  same  date,  the  court  adjudged  that  certain  other 
heritable  property  of  Hunter's  should  belong  to  Smith,  in  payment  and 
satisfaction  of  the  sum  of  75/.,  with  interest  from  the  11th  of  June 
1799. 

Hunter  had  no  notice  of  any  of  these  decrees;  but  a  Scotch  advocate 
proved  that  by  the  law  of  Scotland  the  Court  of  Session  might,  after  such 
proclamations  as  were  mentioned  in  these  decrees  had  been  made,  pro- 
nounce judgment  against  a  native  Scotchman,  who  had  heritable  property 
in  tiiat  country,  for  a  debt  contracted  in  Scotland,  although  the  debtor 
had  no  notice  of  any  of  the  proceedings,  and  was  out  of  Scotland  at  the 
time;  that  a  person  against  whom  such  a  decree  was  pronounced  might 
at  any  time  within  forty  years,  but  not  after,  dispute  the  merits  of  such 
decree;  and  that  the  decrees  adjudging  the  heritable  property  to  the 
creditor  would  not  operate  as  a  satisfaction  of  his  debt  during  the  period 
in  which  the  debtor  had  a  right  to  dispute  the  validity  of  the  first  judg- 
ment. He  also  proved  that  when  decrees  adjudged  interest,  but  did  not 
specify  tb.e  time  from  which  it  was  to  run,  the  interest  was  payable  from 
the  time  of  the  citation. 

In  July  1819,  the  East  India  Company  received  in  London,  from  the 
registrar  of  the  Supreme  Court  of  Judicature  at  Port  William,  in  Bengal, 
a  certificated  copy  of  Hunter's  will;  but  as  late  as  July  1822,  the  defen- 
dant, in  answer  to  an  application  for  payment,  wrote  to  the  plaintifTs  as 
follows: — 

"Captain  Forrest  is  informed  that  Hunter  is  dead,  and  that  he.  Cap- 
tain F.,  is  the  executor;  but  it  would  not  be  proper  for  him  to  act  until 
he  receives  an  authenticated  will  to  that  c/Iecl^  to  be  proved  here.  Cap- 
tain F.  will  write  out  to  India  without  delay." 


4  Bingham,  686.  117 

He  dill  not  lake  out  probate  till  March  1824.      There  was  no  other 
executor  iu  Great  Britain. 

At  the  trial  it  was  objected  that  an  action  did  not  lie  in  our  courts 
on  this  Scotch  decreet,  it  having  been  obtained  in  Hunter's  absence,  and 
witiiout  notice  to  him;  that  the  plaintiflTs  were  barred  by  the  statute  of 
limitations;  and  that  interest  could  not  be  recovered,  the  original  de- 
creets having  specified  no  day  from  which  it  should  run.  Buchanan 
wRucker,  iCampb.  63,  9  East,  192;  JVilliams\.  Lord  Bagot, SB.kC. 
772,  and  Cavati  v.  Stewart,  1  Stark.  525,  were  cited  on  the  first  point, 
and  Murray  v.  East  India  Company,  5  B.  &  A.  204,  on  the  second; 
but  a  verdict  was  taken  for  the  plaintiffs,  subject  to  the  consideration  of 
these  points. 

Wilde  Serjt.  moved  for  a  new  trial  and  in  arrest  of  judgment  on  these 
grounds,  and  a  rule  ^i/^Hiaving  been  granted, 

Bosanquet  and  Taddy  Serjts.  shewed  cause.  First,  this  action  lies  on 
the  Scotch  judgment.  They  cited  the  statute  54  G.  3.  c.  137;  Fisher 
v.  Lane,  3  Wiis.  302,  2  Bl.  Rep.  S34;  Buchanan  v.  liucker,  9  East, 
192. 

Secondly,  the  operation  of  the  statute  of  limitations  did  not  commence 
till  there  was  some  person  in  Great  Britain,  against  whom  the  plaintiffs 
could  proceed,  and  as  late  as  July  182:2,  the  defendant  had  not  only  not 
taken  out  probate,  but  proposed  to  write  to  India  to  ascertain  whether  or 
not  there  was  any  valid  will.  Murray  \.  E.  I.  Company;  Raivlinson 
V.  Shaiv,  3  T.  R.  559;  Wentworth's  Ofliee  of  Executor,  41;  Toller 
471;  Wentvvorth,  p!  36. 

Thirdly,  the  testimony  of  the  Scotch  advocate  disposes  of  the  objec- 
tion touching  the  time  for  which  interest  is  to  be  paid;  at  all  events  the 
omission,  if  material,  is  cured  by  the  decrees  of  1804, 

fVilde,  contra,  referred  to  Fisher  v.  Lane;  Buchanan  v.  liucker^  1 

Campb.   66;  Plowden,  2S0  b. ;  Com.  Dig.  Administration,  B.  9;  Cro. 

Eliz.  92;  Wentw.  Ofl".  Exor.  38.  r^  ^  it 

Cur.  adv.  vult. 

Bf.st  C.  J.  This  was  an  action  brought  by  the  assignees  of  Stein  and 
Co.  bankrupts,  against  the  executor  of  the  will  of  James  Hunter. 

On  the  3 1st  May  1799  the  testator  acknowledged  himself  to  be  in- 
debted to  Stein  and  Co.  in  the  sum  of  147/.  (i.v.  3d.;  and  on  the  11th 
June,  in  the  same  year,  he  acknowledged  that  he  owed  75/.  to  Robert 
Smith,  one  of  the  bankrupts,  and  one  of  the  firm  of  Stein  and  Co.  The.sc 
debts  were  contracted  in  Scotland,  of  wiiich  country  the  deceased  was 
a  native,  and  in  which  he  had  a  heritable  property.  Shortly  after 
the  year  1799,  the  deceased  went  to  India.  He  died  in  India  in  1817, 
liaving  never  revisited  Scotland. 

Dn  the  25lh  February  1S02  two  decrees  were  proiiounc^ed  in  the  (!ourt 
of  Session  in  Scotland  against  the  ileceascd,  one  at  the  instance  of  Steirt 
and  Co.,  and  the  other  at  the  instance  of  Robert  Smith.  In  the  first  of 
these  the  tieceased  was  ordered  to  pay  to  Stein  and  Co.  AMI.  6y.  2d., 
with  interest,  from  the         day  of  ,  besides  expenses  of  process,  &c. 

In  the  second  decree  the  deceased  was  ordered  to  pay  Robert  Smith  the 
sum  of  75/.,  with  interest,  from  the  of  ,  bcside.s  expen.ses  of 

process,  &c.  It  appeared,  from  these  decrees,  that  the  deceased  was  out 
of  Scotland  at  the  time  the  proceedings  were  iiistiluted  in  these  causes. 
He  never  had  any  notice  of  those  proceedings.      The  decrees  stated,  that 


lis  Douglas  v.  Fouhest.  E.  T.  1828. 

the  ilcccnscil  lind  been  (accortling  to  the  law  of  Scotland)  sumnioned  at 
the  market  cross  of  Edinburgh,  and  at  the  pier  and  shore  of  Leith.  A 
Scotch  advocate  proved,  that,  by  the  law  of  Scotland,  the  Court  of  Ses- 
sion might  pronounce  judgment  against  a  native  Scotchman  who  had 
hcrilaljlc  property  in  that  country,  for  a  debt  contracted  in  Scotland, 
allhougli  tiie  debtor  liad  no  notice  of  any  of  the  proceedings,  and  was  out 
of  Scoihind  at  the  time.  After  such  proclamations  as  were  mentioned  in 
these  decrees  had  been  made,  the  same  witness  proved,  that  a  person 
against  whom  such  a  ilecree  was  pronounced,  might,  at  anytime  within 
forty  years,  dispute  the  merits  of  such  decree;  but  that  after  the  expira- 
tion of  forty  years,  it  was  conclusive  against  him,  and  all  who  claimed 
under  him. 

By  a  decree  of  the  Court  of  Session,  of  the  date  of  the  5th  July  1804, 
that  Court  adjudged  that  certain  property  which  the  deceased  possessed 
in  Scotland  should  belong  to  Robert  Smith  and  his  heirs,  in  payment  and 
satisiaction  of  the  sum  of  75/,,  with  interest,  from  the  11th  June  1799. 
By  anotiier  decree  of  the  same  date,  the  Court  of  Session  adjudged,  that 
certain  other  property  of  the  deceased  in  Scotland  should  belong  to  Stein 
and  Co.  and  their  heirs,  in  payment  and  satisfaction  of  the  sum  of  447/. 
G.9.  3d.,  with  interest,  from  the  11th  of  June  1799.  The  two  last  decrees 
fill  up  the  blanks  left  in  the  first  decrees,  by  giving  the  time  from  which 
interest  was  to  be  paid  on  the  debts,  namely,  from  the  11th  June  1799; 
and  if  the  plaintiff's  can  maintain  their  action,  entitles  them  to  a  verdict 
for  the  sum  of  SG2/.  The  terms  in  wliich  the  two  last  decrees  are  ex- 
pressed, seem  to  import  that  the  lands  adjudged  to  Stein  and  Co.  and 
Smith,  were  given  to  and  accepted  by  them,  in  satisfaction  of  these  debts; 
but  this  cannot  be  the  true  construction  of  these  decrees,  because  none 
of  the  decrees  are  conclusive  against  the  deceased  and  those  who  claim 
under  him,  until  the  expiration  of  forty  years  from  the  time  of  pro- 
nouncing the  two  first  decrees.  Phe  advocate  who  was  examined  in  the 
cause  proved,  that  by  the  law  of  Scotland,  these  decrees  would  not  oper- 
ate as  satisfaction  of  the  debts,  during  the  period  that  the  debtor  had  a 
rigiit  to  disjiute  the  validity  of  the  first  judgments.  A  Scotch  statute, 
which  we  have  looked  into,  shews  the  accuracy  of  the  opinion  given  to 
us  on  the  Scotcli  laws  by  the  learned  advocate:  and  I  feel  it  due  to  him 
to  say,  that,  from  the  manner  in  which  he  gave  his  evidence,  the  clearness 
and  precision  with  which  he  explained  the  grounds  of  his  opinion,  I  have 
no  doubt  that  he  is  extremely  well  acquainted  with  the  Scotch  law,  and 
that  we  may  safely  rely  on  every  part  of  his  evidence. 

The  two  last  decrees,  proving  that  interest  was  to  run  from  1799,  and 
the  testimony  of  the  learned  advocate,  who  proved,  that  when  decrees 
adjudged  that  interest  should  be  paid,  but  did  not  shew  the  time  from 
whicli  it  was  to  run,  interest  was  payal)le  from  the  time  of  the  citation, — 
dispose  of  the  objection  that  no  interest  could  be  recovered  upon  these 
decrees. 

The  plaintiffs  rested  their  claim  on  these  decrees.  The  defendant  in- 
sisted that  these  decrees  would  not  support  an  action  in  our  Courts, 
because  they  were  repugnant  to  the  principles  of  justice,  having  been 
pronounced  whilst  the  deceased  was  at  a  great  distance  from  Scotland, 
and  without  any  notice  given  to  him  that  any  jiroceedings  were  institu- 
t«^*d  against  him.  This  defence  was  made  on  the  general  issue.  The 
defendant  also  pleaded,  that  the  plaintiff's  cause  of  action  did  not  accrue 


4  Bingham,  686.  119 

within  six  years  before  the  commencement  of  the  suit.  To  this  there 
Was  a  replication,  that  the  deceased,  at  the  time  when  the  cause  of  action 
accrued,  was  beyond  seas,  and  remained  beyond  the  seas  until  the  year 
1S17,  when  he  died;  and  tliat  the  plaintiffs  sued  out  their  writ  against 
the  defendant,  within  six  years  after  he  first  took  on  himself  the  burthen 
and  execution  of  the  will  of  the  deceased  in  Great  Britain,  and  that  he 
had  no  other  executor  in  Great  Britain.  This  replication  was  fully 
proved,  and,  therefore,  the  issue  taken  on  it  was  properly  found  for  the 
plaintiffs. 

The  questions  to  be  decided  are,  first,  whether  an  action  can  be  main- 
tained in  England  on  these  judgments  of  the  Court  of  Session  in  Scotland. 
Secondly,  whether  the  replication  is  an  answer  to  the  pleas  of  the  stat- 
ute of  limitations. 

On  the  first  question  we  agree  with  the  defendant's  counsel,  that  if 
these  decrees  are  repugnant  to  the  principles  of  universal  justice,  this 
Court  ought  not  to  give  effect  to  them;  but  we  think  that  these  decrees 
are  perfectly  consistent  with  the  principles  of  justice. "  If  we  held  that 
they  were  not  consistent  with  the  principles  of  justice,  we  should  con- 
demn the  proceedings  of  some  of  our  own  courts.  If  a  debt  be  contracted 
within  the  city  of  London,  and  the  creditor  issues  a  summons  against  the 
debtor,  to  which  a  return  is  made,  that  the  debtor  hath  nothing  within 
the  city  by  which  he  may  be  summoned,  or,  in  plainer  words,  hath 
nothing  by  the  seizure  of  which  his  appearance  may  be  enforced,  goods 
belonging  to  the  debtor  in  the  hands  of  a  third  person,  or  money  due 
from  a  third  person  to  the  debtor,  may  be  attached;  and  unless  the  debtor 
aj)pears  within  a  year  and  a  day,  and  disputes  his  debt,  he  is  forever  de- 
prived of  his  property  or  the  debts  due  to  him. 

In  such  cases  the  defendant  may  be  in  the  East  Indies  whilst  the  pro- 
ceedings are  going  on  against  him  in  a  court  in  London,  and  may  not  know 
thatany  such  proceedings  are  instituted.  Instead  of  the  forty  years  given 
by  the  Scotch  law,  he  has  only  one  year  given  to  him  to  appearand  pre- 
vent a  decision  that  finally  transfers  fi'om  him  his  propert}'.  Lord  Chief 
Justice  l)c  Grey  thought  this  custom  of  foreign  allaclimcnt  was  an  un- 
reasonable one,  but  it  has  existed  from  the  earliest  times  in  London,  and 
in  other  towns  in  England,  and  in  many  of  our  colonies  from  their  first 
establishment.  Lord  Chief  Justice  De  Grey  and  the  Court  of  Common 
Pleas,  after  much  consideration,  decided  against  the  validity  of  the  at- 
tachment, according  to  the  report  in  3  Wilson,  297,  because  the  party 
objecting  to  it  had  never  beeri  summoned  or  had  notice.  The  report  of 
the  same  case  in  2  Blackstone,  834,  shews  tliat  the  Court  did  not  think 
a  personal  summons  necessary,  or  any  summons  that  could  convey  any 
information  to  the  person  summoned,  but  a  summons  with  a  return  of 
nihil  \  that  is,  such  a  summons  as  I  have  mentioned,  namely,  one  that 
shews  that  the  debtor  is  not  within  the  city,  and  has  nothing  there,  by 
the  seizing  of  which  he  may  be  compelled  to  appear.  The  .ll  G.  3.  c. 
137.  nototdy  recognizes  the  practice  on  which  these  decrees  arc  founded, 
as  being  according  to  the  law  of  Scotland,  but  enacts,  that  on  notices  be- 
ing given  at  the  market  cross  at  Ivlinbuigh,  and  on  the  pier  and  shore  of 
Leith,  to  (lel)torsout  of  the  kingdom,  in  default  of  their  appearance  the 
creditors  may  issue  a  sequestration  against  their  effects.  Can  we  say  that 
a  practice  which  the  legislature  of  the  United  Kingdom  has  recognized 
and  extended  to  other  cases  is  contrary  to  the  principles  of  justice? 


MO  Dorci.xs  r.  Foiinr.sT.   E.  T.  1828. 

A  intiuMll)  )ni  siihjiMM.  of  nny  country,  quitting  tlmt  country,  but 
liMvini;  property  ninloi-  the  |)rotO('lion  of  its  law,  even  during  his  al)sence, 
i)\vos  ohcdionoe  to  those  laws,  particularly  when  those  laws  enforce  a 
moral  obhgalion. 

The  lieceascd,  before  he  left  his  native  country,  acknowledged,  under 
his  hand,  that  he  owed  the  debts  ;  he  was  under  a  moral  obligation  to 
ilischargc  those  debts  as  soon  as  he  could.  It  must  be  taken  for  granted, 
from  there  being  no  plea  of  piene  admiJiisfravit,  that  the  deceased  had 
the  means  of  paying  what  was  due  to  the  bankrupts.  The  law  of  Scot- 
land has  only  enforced  the  pei'formance  of  a  moral  obligation,  by  making 
bis  executor  pay  \^  hat  he  admitted  was  due,  with  interest  during  the  time 
that  be  cle|)rivcd  his  creditors  of  their  just  debts. 

The  reasoning  of  Lord  Ei'/enboroiii(h,  in  the  case  of  Bnchanan  v. 
NucA-er,  1  Campb.  63,  and  9  East,  192,  is  in  favour  of  these  decrees. 
Speaking  of  a  case  decided  by  Lord  Kenyon.,  his  Lordship  says,  in  that 
case  the  defendant  had  property  in  the  island,  and  might  be  considered 
as  virtually  present.  The  Court  decided  against  the  validity  of  the  at- 
tachment, because  it  did  not  appear  that  the  party  attached  ever  was  in 
the  island,  or  bad  any  property  in  it.  In  botb  these  respects  that  case 
is  unlike  the  present.  In  the  case  of  Cavan  v.  Steivart,  Lord  Ellen- 
borough  says.  You  must  prove  him  summoned,  or,  at  least,  that  he  was 
once  in  the  island  of  Jamaica,  when  the  attachment  issued. 

To  be  sure  if  attachments  issued  against  persons  who  never  were  with- 
in the  jurisdiction  of  the  Court  issuing  them,  could  be  supported  and 
enforced  in  the  country  in  which  the  person  attached  resided,  the  legis- 
lature of  any  country  might  authorize  their  courts  to  decide  on  the  rights 
of  parties  who  owed  no  allegiance  to  the  government  of  such  country, 
and  were  under  no  obligation  to  attend  its  courts,  or  obey  its  laws.  We 
confine  our  judgment  to  a  case  where  the  party  owed  allegiance  to  the 
country  in  which  the  judgment  was  so  given  against  him,  from  being 
born  in  it,  and  by  the  laws  of  which  country  his  property  was,  at  the 
time  those  judgments  were  given,  protected.  The  debts  were  contract- 
ed in  the  country  in  which  the  judgments  were  given,  whilst  the  debtor 
resided  in  it. 

The  only  other  case  that  has  been  mentioned  is  that  of  Williams  v. 
Lord  Dugot  ;  in  that  case  a  summons  to  appear,  and  an  attachment  to 
compel  ajipearance  issued  at  the  same  time,  and  were  returnable  at  tiie 
same  lime.  These  proceedings  were  not  only  contrary  to  justice,  but 
contrary  to  our  law,  and  the  court  from  which  these  proceedings  issued 
was  governed  by  English  law. 

Upon  the  second  question  we  are  of  opinion  that  the  replication  is  an 
answer  to  the  pleas  of  the  statute  of  limitations.  The  words  of  the  21  Ja. 
1.  c.  If),  s.  3.  are,  that  the  action  shall  be  brought  "within  six  years 
next  after  the  cause  of  such  actions  or  suits,  and  not  after."  Although 
tlie  injury  of  which  the  plaintiffs  complain  has  existed  more  than  six 
years,  yet  they  had  no  cause  of  action  until  there  was  some  person  with- 
in the  realm  against  whom  the  action  could  be  brought.  Cause  of  action 
is  the  right  to  prosecute  an  action  with  effect ;  no  one  has  a  complete 
cause  of  action  until  there  is  somebody  that  he  can  sue.  The  deceased 
was  never  in  England  after  the  cause  of  action  accrued  against  him;  after 
bis  death  there  was  no  person  in  England  against  whom  the  plaintiffs 
could  proceed,  until  the  defendant  took  upon  himself  the  execution  of  his 


4  Bingham,  686.  121 

Avill.  The  clelendant  tlid  not  act  ns  executor,  or  prove  the  will  of  the 
deceased,  until  1S24.  An  executor  may  do  many  acts  before  he  has 
proved  the  will,  and  when  he  has  proved  the  will,  his  rii];ht  to  the  tes- 
tator's property  has  relation  to  the  time  of  the  testator's  death,  but  we 
do  not  think  that  any  action  can  be  maintained  against  him  as  executor, 
imtil  he  has  taken  upon  himself  to  act  as  such,  or  has  proved  the  will. 

One  who  is  appointed  an  executor  may  renounce.  It  would  be  injustice 
to  allow  actions  to  be  brought  against  one  appointed  executor,  who  never 
meant  to  act  as  such,  before  he  had  an  opportunity  of  renouncing.      If 
he  be  liable  to  actions  before  he  has  acted  as  executor,  or  proved  the  will, 
his  liability  must  arise  on  the  instant  of  the  death  of  the   testator,  and 
many  actions  might  be   brought  against  him  before  he  could  renounce, 
and  from  these  actions  he   could  not  be  relieved  without  expense  and 
trouble.     All  that   the  passages  in   Plowden,  2S0   b.,  and  Com.   Dig. 
(B  9.)   tit.    Administration,  to  which  we  were  referred,  prove,  is,  that 
an  executor  may  be  sued  before  he  has  proved  the  will.     If  he  has  acted 
as  executor  he  may  be  sued  as  executor,  whether  he  has  proved  the  will 
or  not.      In  the  present  case  the  defendant  had  not  acted  before  1824, 
when  he  obtained  probate.     In  liaiulinson  v.  Shaw  it  was  determined 
that  if  a  debtor  makes  his  creditor  one  of  his  executors,  the  creditor,  not 
.having  proved  the  will,  or  acted  in  its  execution,  may  sue  the  other  ex- 
ecutor for  his  debt.       A  man  cannot  sue  as  plaintifl'  who  might  be  sued 
as  defendant.   In  Joliffe  v.  Pitt,  2  Vern.  694,  it  is  stated  by  the  report- 
er to  have  been  agreed,  that  no  laches  can  be  attributed  to  a  man  for  not 
suing  whilst  there  was  no  executor  against  whom  he  could  bring  his 
action.       I  presume  that  this  point  was  agreed  to  by  the  counsel  for  all 
the  parties.     The  report  then  states,  that  '<  the  Chancellor  inclined  to  be 
of  opinion  that  the  statute  of  limitations  was  not  to  take  place."      This 
point,  however,  was  not  decided  by  the  Court.   In  JVehster  v.  TFebste)', 
10  Vcs.  93,  it  appeared  that  the  testator  died  in  17S6  ;    the  will  was 
proved  in  1S02.     The  Lord  Chancellor  said,  that  as  there  was  no  repre- 
sentative until  1802,  there  was  no  person  who  could  be  sued,  and  there- 
fore the  statute  of  limitations  could  not  be  pleaded.       His  Lordship's  at- 
tention was  afterwards  called  to  an  allegation  on  the   bill,   that  shewed 
that  the  executor  had  taken   possession  of  the  testator's  property  pre- 
viously to  17!>2,  upon  whicii  he  allowed  the  plea  of  the  statute  of  limi- 
tations, and  said  there  was  not  ordy  a  cause  of  action,  but  an  opportuni- 
ty of  suing  in  1792.       This  decision  is  an  authority  in   point,  to  shew 
that  the  statute  only  rinis  from  the  time;  that  an  executor  has  either  acted 
or  proved  the  will,      'i'lu;  replication  in  this  case  is  a  good  answer  to  th« 
plea.     Tlie  postea  must  be  flelivored  to  the  plaintiffs,  and  the  verdict  en- 
tered for  them,  fur  ^fli/. 

Judgment  for  the  plaintills. 


DITCIIAM  v.  CIIIVIS— p.  70fi. 

PlaintirTallcjrcd  that  defendant,  hnvinp  agreed  to  convey  her  safely  by  his  coach 
from  London  to  Hlacklu-atli,  nci^lrcted  his  diitv,  by  ihinwin)j;  her  dr)\vn,  &r 
Defendant's  macti  ran  from  Cliarini;  Cross  to  Ularkheatli,  and  plaiiilinTgot  up 
at  The    Klcpliant  and  Castle  ;  lint  d<-fciidant  had  inbcribcd  on  his  coach  "  Lon- 
don to  Blarkhcath:"  Held,  no  variance. 
VOL.    XV.  1'; 


122  DiTciiAM  V.  Cun  is.  E.  T.  1828. 

Case  against  the  defendant,  a  coach  proprietor,  for  not  safely  carry- 
ing the  plaintilT  from  London  to  Blackhcath. 

The  declaration  stated,  that  the  defendant  was  owner  of  a  stage-coach 
running  from  London  to  Blackheath,  and  that  the  plaintiff,  at  his  request, 
agreed  to  become  an  outside  passenger,  to  be  safely  carried  from  London 
to  Blackliealh,  whereupon  it  became  the  defendant's  duty  to  use  proper 
care  in  carrying  her:  that  defendant,  not  regarding  his  duty,  did  not 
take  proper  care,  but  permitted  the  horses  to  move  on  while  the  plaintiff 
•was  getting  up,  wlicreby  she  was  thrown  down  with  great  violence,  and 
was  much  bruised  and  wounded. 

At  the  trial  before  Pat'k  J.,  London  sittings  after  Michaelmas  term, 
it  appeared,  that  the  defendant's  coach  was  licensed  to  run  from  Charing 
Cross  to  Blackheath  ;  but  that  the  defendant  would  not  evade  the  stamp 
duty  by  going  through  the  city  of  London  ;  and  that  the  words  London 
to  Blackheath  were  painted  on  his  coach  ;  that  the  plaintiff,  a  female  of 
sixty,  was  (at  the  Elephant  and  Castle,  St.  George's  Fields,)  in  the  act 
of  gettingup  into  the  dickey  (the  hinder  part)  of  the  coach,  assisted  by 
the  cad,  when  the  coachman,  whose  face  was  turned  towards  Greenwich, 
drove  swiftly  off ;  in  consequence  of  which  the  plaintiff  fell,  and  was  se- 
riously injured  in  the  knee. 

It  was  objected,  that  as  the  plaintiff  got  up  at  the  Elephant  and  Castle, 
there  was  no  proof  of  the  allegation  in  the  declaration,  that  she  had 
agreed  to  go  from  London  to  Blackheath,  nor  that  the  defendant's  coach 
ran  from  London  to  Blackheath,  the  variance  was  fatal.  The  learned 
Judge  reserved  the  point,  but  a  verdict  was  found  for  the  plaintiff. 

Tuddij  Serjt.  having  on  these  grounds  obtained  arule?22«  to  set  aside 
the  verdict  and  enter  a  nonsuit  instead, 

Wilde  Serjt.  now  shewed  cause,  and  referred  to  Burbige  v.  Jakes,  1 
B.  &P.  225;  Frith  V.  Gray,  4^1.  R.  561,n.;  Drewryw.  Tiviss,4T.  R. 
558. 

Taddy  and  Andrews  Serjts.  supported  the  rule. 

Best  C.  J.  I  have  no  objection  that  it  should  be  said  of  me  that  I  al- 
ways entertained  a  strong  impression  against  deciding  on  the  groundof  va- 
riance. That  impression  will  never  induce  me  to  overturn  the  law;  but  I 
see  enough  here  to  relieve  the  jilaintiff  from  this  objection.  The  agree- 
ment here  must  be  taken  according  to  the  intention  of  the  parties,  and  by 
London,  they  meant,  not  the  city,  strictly  speaking,  but  what  is  usually 
called  London:  and  if  we  wanted  assistance  to  find  such  a  construction 
of  the  word,  the  defendant  has  furnished  it  to  us,  for  if  London  means 
the  city  only,  he  never  performs  his  contract,  for  he  never  starts  from 
or  passes  through  the  city.  It  must,  therefore,  mean  some  place  which 
in  common  parlance  is  styled  London;  and  if  Westminster  be  included, 
even  with  its  separate  jurisdiction,  a  fortiori,  may  the  Elephant  and 
Castle  be  included,  which  is  nearer  to  the  city  than  Westminster.  The 
contract  here,  is  a  contract  to  cariy  from  that  place  which  the  parties 
understood  to  be  London,  and  the  defendant  has  shewn  what  his  under- 
standing of  the  word  is,  from  the  inscription  on  his  coach,  and  the  place 
from  which  he  starts.  That  this  is  the  proper  construction  of  the  contract, 
may  be  collected  from  the  case  of  Burbige  v.  Jakes,  in  which  the  de- 
claration states,  that  the  plaintiff  was  possessed  of  a  messuage  atSheerness. 
At  the  trial  it  was  proved  that  the  house  stood  in  the  parish  of  Minster, 
which  is  contiguous  to  Sheerncss,  and  usually  goes  under  that  name:  the 


4  Bingham,  706.  123 

variance  was  held  to  be  immaterial.  That  case  bears  us  out  in  saying  that 
the  plaintifl'  has  correctly  described  this  contract  as  being  a  contract  to 
carry  her  from  anyplace  within  the  ambit  of  that  which  is  usually  called 
London. 

Park  J.   concurred. 

Gasei.ee  J.  1  cannot  deem  this  allegation  immaterial,  but  I  think 
the  verdict  may  be  supported  on  the  grounds  stated  by  the  Lord  Chief 
Justice;  and  I  rely  on  the  conduct  of  the  defendant  for  the  construction 
to  be  put  on  his  contract  to  convey  from  and  to  London.  What  would 
he  say,  if  a  passenger  arriving  at  Charing  Cross,  were  to  refuse  to  pay  on 
the  ground  that  the  engagement  was  to  convey  him  to  London?  The 
case  oi  Burbige  v.  Jakes  is  in  point;  the  house  described  to  be  in  Sheer- 
ness,  was  not  in  Sheerness,  but  in  Minster,  which  is  in  the  same  district, 
and  the  Court  held  that  in  substance  that  supported  the  allegation.  The 
rule,  therefore,  must  be 

Discharged. 


FOTHERGILL  v.  WALTON  and  RONDEAU.— p.  71 L 

Where  administration  had  been  taken  out,  the  Court  refused,  without  the  au- 
thority of  the  administratrix,  to  discharge  defendant  out  of  execution  after  the 
death' of  the  plaintiff',  although  his  administratrix  and  his  assignees  (he  having 
been  a  bankrupt),  disclaimed  all  interest  in  the  action. 

Lawes  Serjt.  obtained  a  rule,  calling  on  the  administratrix  and 
assignees  of  the  plaintiff(he  having  been  a  bankrupt),  to  shew  cause  why 
tiie  defendant,  Rondeau,  should  not  be  discharged  out  of  custody  as  to 
the  execution  in  this  action,  on  the  ground  that  the  plaintiff  had  sued  as 
a  trustee  only,  and  that  his  administratrix  and  assignees  disclaimed  all 
right,  title,  claim,  or  interest  in  or  to  the  damages  recovered. 

Rondeau's  affidavit  slated,  that  under  a  charter-party  entered  into  by 
the  defendants,  the  ship  Ehzabeth,  then  lying  at  Havre  de  Grace,  was 
to  proceed  to  Tcrceira,  and  plaintiff  engaged  to  ship  and  take  on  board 
at  Ilavre  six  pipes  of  brandy,  the  freight  and  amount  of  whicli  was  to 
be  taken  out  in  fruit  at  a  certain  price;  in  consideration  of  which,  the 
defendants  agreed  to  pay  freight,  and  guarantee  a  full  cargo  home: 

That  the  defendant,  Walton,  went  to  Tcrceira,  and  contracted  for 
fruit  in  barter  for  brandy;  tliat  the  ship  arrived  in  ballast,  without  the 
brandy;  that  the  master  wrote  for  the  cargo  to  be  delivered;  that  the 
defendant  answered,  he  was  ready  with  a  cargo,  on  delivery  of  tbc 
brandy;  but,  that  without  the  brandy,  the  merchant  who  had  contracted 
to  furnish  the  fruit,  refused  to  deliver  it;  that  the  siiip  returned  to  Eng- 
land; that  an  action  was  commenced  against  the  plaintiff  by  defendants 
for  not  shipping  the  brandy;  that  the  proceedings  in  such  action  were 
delayed  by  reason  of  the  necessity  of  sending  out  a  commission  to  Ter- 
ccira,  and  the  action  was  not  finally  settled  at  the  death  of  the  plaintiff, 
which  hnppened  in  IS27;  that  sliorlly  after  defendants  had  sued  plain- 
tiff fur  damages,  plaintiff  commenced  an  action  against  defendants  for 
freight,  and  recovered  ajudgment  lor  damages  aii<i  costs,  41S/.   \Ss.{u)\ 

(n)Sfc  Folhcrpill  v.  Walton,  H  Taunt.. '576,  in  wliicii  it  \v;is  li^ldcn,  tlial  U)cdc 
Jivcry  of  the  brandy  I)y  I'othcriiill  was  not  acondilitJii  piccedcnt. 


124  FoTiii-R(;ii,i,  V.  Walton.   E.  T.  1828. 

that  (ihilcr  this  jiulgnicnl  Rondeau  was  taken  in  execution,  in  May  1820, 
by  the  shorilVof  Surrey,  and  still  remained  in  execution;  that  tlicphnn- 
tilT  had  no  interest  in  the  charter  or  damages,  hut  that  Messrs.  Attvvood 
and  others  were  the  owners  and  interested,  and  that  plaintiff  acted  under 
their  orders;  that  defendants  relied  on  the  delivery  of  the  brandy,  in 
iaith  of  which  defendant,  Walton,  went  abroad  and  contracted  for  fruit 
and  cargo,  which  contract  lie  being  unable  to  execute  for  want  of  the 
brandy,  a  loss  was  incurred  of  2000/.:  that  defendants  offered  to  plain- 
tiff, to  allow  a  set-off  of  41S/.  18.y,  recovered  against  them  out  of  defen- 
dants' damages  of  2000/.;  that  plaintiff  refused  this,  and  required  de- 
fendants to  release  their  whole  claim;  that  plaintiff  became  bankrupt  in 
1S22,  and  on  his  examination  disclaimed  all  interest  in  this  action;  that 
he  was  indemnified  by  Attwood  and  others,  the  owners  of  the  ship; 
that  his  name  was  used  for  form;  and  that  he  would  have  liberated  de- 
fendant, but  could  not;  that  plaintiff  died  intestate,  and  that  letters  of 
administration  were  granted  to  his  widow,  who  disclaimed  all  interest 
in  this  action;  that  the  assignees  also  disclaimed  damages;  that  the  de- 
fendants were  ready  to  allow  the  owners  credit  in  account  for  damages; 
that  the  defendant.  Rondeau,  was  seventy-six  years  old,  and  had  been 
confined  in  prison  nearly  eight  years  in  this  action. 

Laivcs  cited  Pai'Jcinson  v.  Horlock,  2  N.  R.  240,  where,  after  the 
plaintiff's  death,  the  Court  in  ISOG  discharged  from  execution  a  defen- 
dant who  had  been  in  custody  ever  since  the  year  1792;  and  Broiigh- 
ion  v.  Martin,  1  B.  &  P.  17G,  where  the  same  course  was  pursued  un- 
der similar  circumstances;  no  administration  in  those  cases  having  been 
taken  out  to  the  respective  plaintiffs,  which  amounted  to  the  same  thing 
as  the  administratrix  disclaiming  an  interest  in  the  cause. 

Wilde  Serjt.,  who  shewed  cause,  distinguished  those  cases  from  the 
present,  on  the  ground  that  there  was  no  personal  representative  of  the 
plaintiff  who  could  discharge  the  defendants;  whereas,  here,  the  admi- 
nistratrix might  immefliately  discharge  the  defendant  if  she  chose  to 
take  on  herself  tlie  responsibility  of  doing  so;  and  if  she  declined  incur-" 
ring  that  responsibility,  the  Court  could  not  impose  it  on  her. 

Laives  {E.  La ives  S>erjt  was  with  him),  referred  to  Bauerman-v. 
Jladcnitis,  7  T.  R.  GG3,  as  establishing  the  principle,  that  a  court  of 
law  will  not  look  to  the  rights  of  parties  onl}"^  equitably  interested,  the 
declarations  of  a  trustee  plaintiff  having  been  admitted  in  that  case  to  de- 
feat the  action.  In  like  manner,  he  urged,  the  disclaimer  of  the  admi- 
nistratrix in  the  present  instance  ought  to  operate  as  a  release  to  thede- 
fcndant.  At  all  events,  if  the  Court  would  on  one  side  look  to  the  rights 
of  those  who  were  equitably  interested,  they  would  consider  also  what 
was  equitable  for  the  other  side;  and  the  affidavit  on  which  he  moved 
sufficiently  cstablisiied  the  defendants'  claim  to  be  discharged  ongood 
conscience,  independently  of  his  years  and  long  imprisonment. 

Best  C.  J.  Appeals  have  been  made  to  compassion  in  which  the 
Court  is  not  at  liberty  to  indulge.  Here  is  a  legal  judgment  against 
the  defendant,  and  if  there  were  no  person  who  could  discharge  him 
from  it,  the  Court  might  perhaps  interfere,  having  gone  that  "length 
upon  former  occasions.  But  tiie  plaintiff's  legal  representative  has  full 
power,  if  she  pleases,  to  discharge  the  defendant  out  of  custody.  Ought 
we,  tiion,  to  interfere  and  relieve  her  from  the  responsibility  on  which 
slie  detains  him.^     Wc  could  not  do  so  without  great  injustice.     Since 


4  Bingham,  711.  125 

the  court  for  the  relief  of  insolvent  debtors  has  been  cstablislicd,  every 
honest  debtor  may  be  discharged  out  of  custody  if  he  will  surrender  his 
property  to  his  creditors,  and  if  he  will  not,  he  ought  to  remain.  We 
have  no  discretion  in  the  present  case,  and  if  we  had,  we  ought  not  to 
exercise  it  in  favour  of  the  defendant. 

Park  J.  The  cases  which  have  been  cited  do  not  apph*,  for  in  those 
cases  the  Court  interfered,  because  there  was  no  legal  representative  who 
could  discharge  the  defendant;  here  there  is  an  administratrix,  who  has 
a  vaHd  judgment  and  power  to  discharge  the  defendant.  In  Dunsford 
v.  Gouldsmilh,  S  B.  Moore,  145,  the  Court  refused  to  discharge  a  de- 
fendant after  the  death  of  the  plaintiff,  because  there  was  an  executor 
who  had  taken  out  probate,  and  had  the  power  of  discharging  the  de- 
fendant. And  in  tliat  respect  there  is  no  difference  between  an  execu- 
tor and  an  administrator.  Bauerman  v.  Radeiiius  has  nothing  to  do 
with  the  present  question. 

The  rest  of  the  Court  concurring,  the  rule  was 

Discharged. 


IIAWKES  and  Others,  Assignees  of  DAY  and  Others,  Bankrupts,  v. 
SALTER.— p.  715. 

A  bill  was  dishonoured  on  Saturday  in  a  place  where  the  post  went  out  at  half 
after  nine  in  the  morning:  Held,  that  it  was  sufficient  notice  of  dishonour  to 
send  a  letter  bv  the  following  Tuesday  morning's  post. 

The  holder's  clerk,  who  copied  the  letter  containing  the  notice,  said,  that  the  let- 
ter was  put  into  the  post  on  the  Tuesday  morning,  but  he  .had  no  recollection 
whetiier  it  was  done  by  himself  or  another  clerk  : 

Held,  not  sufficient  evidence  of  putting  into  the  post. 

Action  against  the  defendant  as  drawer  of  a  bill  of  exchange  for  125/., 
accepted  b}'-  one  Calver,  payable  at  Messrs.  Days,  Norwich. 

At  the  tjial  of  the  cause  before  the  Lord  Chief  Baron,  Norfolk  Sum- 
mcr  assizes  1827,  it  appeared  that  the  bill  became  due  on  Saturday,  the 
7lh  of  January  1827  ;  that  it  was  on  that  day  presented  at  Messrs. 
Days,  Norwich,  for  payment,  and  dishonoured;  that  Calver,  the  ac- 
ceptor, lived  within  a  mile  of  Norwich;  that  the  defendant,  the  drawer, 
lived  at  Swafficld,  near  North  Walsham,  about  fourteen  miles  from  Nor- 
wich; and  that  the  post  from  Norwich  to  North  Walsham  leaves  Nor- 
wich at  half  after  nine  in  the  morning.  One  of  the  plaintiffs'  clerk.s 
stated,  that  a  letter  from  the  plaintiffs,  which  the  witness  had  copied, 
giving  the  defendant  notice  of  the  dishonour  of  the  bill,  was  sent  by  the 
post  from  Norwich  on  Tuesday  morning,  the  10th  of  January,  but  ho 
liad  no  recollection  whether  it  was  put  in  by  himself  or  by  another 
clerk.  It  was  objected,  that  the  bill  ought  to  have  been  presented  to 
Calver  himself;  tliat  notice  of  dishonour  ought  to  have  been  sent  by  the 
Monday's  post;  and  that  at  all  events  there  was  not  suflicicnt  evider>co 
that  the  letter  had  ever  been  put  into  the  post. 

A  verdict  was  found  for  the  plaintiffs,  but  the  objections  were  re- 
served for  the  opinion  of  the  ("ourt,  and 

Slorfcs  Scrjt.  accordingly  obtained  a  rule  nisi  to  enter  a  nonsuit  or  a 
verdict  for  llic  defendant,  on  the  grounds  above  stated,  against  which 

S'pan/t-ir  Serjt.  shewed   (muso.      Allhough  by  statute  an  acceptance  at 


126  PiiiLi'oT  V.  Bui  ANT.  E.  T.  1828. 

a  particular  place  is  the  same  as  a  general  acceptance,  and  the  bill  might 
have  been  presented  to  Calver  himself,  yet  if  he  appoints  an  agent  to 
j)ay  the  bill,  presentment  to  that  agent  is  in  law  the  same  thing  as  pre- 
sentment to  himself.  Then  the  plaintiffs  were,  according  to  all  the  de- 
cisions, allowed  a  day  to  give  notice  of  dishonour.  They  could  not 
write  on  Sunday,  for  that  would  have  been  conti'a  bonos  mores;  and 
they  were  not  bound  to  get  up  at  an  unseasonable  hour  on  Monday  morn- 
ing; they  might  write  during  the  whole  of  Monday,  and  Tuesday  morn- 
ing's post  was  early  enough,  there  being  no  post  on  Monday  night.  \w 
Bray  v.  Iladwcn,  5  M.  &  S,  6S,  where  the  bankers  of  the  holder  of  a 
bill  received  on  a  Sunday  morning  notice  of  its  dishonour,  which  they 
wrote  to  apprise  the  holder  of,  on  Monday,  but  put  the  letter  into  tho 
post  after  twelve  o'clock  at  noon,  at  which  time  the  mail  started,  so  that 
it  did  not  go  till  the  next  day;  it  was  holden  that  they  had  all  Monday 
to  write,  and  that  as  far  as  tliey  were  concerned  there  had  been  no  im- 
proper delay.  The  same  point  was  decided  in  Wright  v.  ShaivcrosSy 
2  B.  &  A.  501,  n. 

The  evidence  was  sufficient  to  go  to  the  jury.  In  Hetherington  v. 
Kemp,  4  Campb.  192,  Lord  Ellenboroitgh  said,  "had  you  called  the 
(plaintiff's)  porter,  and  he  had  said  that  although  he  had  no  recollection 
of  the  letter  in  question,  he  invariably  carried  to  the  post-office  all  the 
letters  found  upon  the  (plaintiff's)  table,  this  might  have  done." 

It  is  the  same  thing  if  the  clerk  who  copied  tlie  letter  affirms  that  it« 
was  sent,  though  he  does  not  recollect  whether  he  or  another  clerk  put 
it  into  the  box. 

Slorks  insisted  that  the  bill  ought  to  have  been  presented  to  Calver 
himself;  for  the  words  "payable  at  Messrs.  Days,"  formed  no  part  of 
the  contract  since  the  act  of  parliament  which  had  made  such  an  accept- 
ance a  general  acceptance.  At  all  events  there  was  no  evidence  that 
the  letter  had  been  put  into  the  post;  the  clerk  called  could  not  know 
what  the  other  had  done;  and  he  had  no  recollection  as  far  as  concerned 
himself. 

Upon  the  authority  of  the  cases  cited. 

Best  C.  J.  expressed  himself  clearly  of  opinion,  that  it  would  have 
been  sufficient  if  the  letter  had  been  put  into  the  post  before  the  mail 
started  on  theTuesday  morning;  butthat  there  was  no  sufficient  evidence 
that  it  had  been  put  in,  even  on  Tuesday  morning. 

The  Court  therefore  granted  a  new  trial,  on  payment  of  costs. 

Rule  absolute  for  a  new  trial. 


PIIILPOT  V.  BRIANT.— p.  717. 

If  liic  executor  of  the  acccjjtor  of  a  bill  of  exchange,  orally  promise  to  pay  the 
holder  out  of  her  own  estate,  provided  he  forbear  to  sue,  and  the  holder  fovbear 
to  sue  in  consequence  ;  the  jiromise  being  void,  the  drawer  of  the  bill  is  not 
discharged  by  the  holder's  having  promised  to  give  time,  and  having  delayed  to 
sue  under  such  circumstances. 

Action  by  the  holder  against  the  drawer  of  a  bill  of  exchange,  whicfj 
had  been  accepte<l  by  the  drawer's  brother.  None  of  the  counts  in  the 
declaration  stated  the  acceptance  or  notice  of  non-acceptance. 


4  Bingham,  717,  127 

The  defence  was,  that  time  had  been  given  by  tlie  holder  to  the  ac- 
ceptor's executrix,  without  the  knowledge  or  consent  of  the  drawer;  as 
to  which  the  evidence  was,  that  the  bill,  which  was  payable  six  months 
after  date,  was  due  March  19,  1S23;  that  the  acceptor  died  before  that 
day;  that  the  plaintiff  applied  to  the  acceptor's  brother,  the  son  and 
agent  of  his  executrix,  for  payment,  when  he  said  there  was  not  suffi- 
cient personal  property  to  pay  the  bill  then,  but  that  if  the  plaintifl' would 
let  the  matter  stand  over,  the  executrix  would  engage  to  pay  the  bill  out 
of  her  private  income.  Plaintiff  promised,  provided  the  interest  were 
paid,  to  give  a  reasonable  time;  and  in  pursuance  of  this  agreement, 
interest  was  paid  out  of  the  private  income  of  the  executrix. 

It  was  also  objected  that  the  declaration  was  insufficient,  in  not  aver- 
ring an  acceptance  or  notice  of  non-acceptance. 

Park  J.,  before  whom  the  cause  was  tried  at  the  London  sittings  after 
Michaelmas  term,  overruled  the  latter  objection;  but  upon  a  verdict  be- 
ing taken  for  the  plaintiff,  reserved  to  the  defendant  leave  to  move  to 
enter  a  nonsuit  on  the  former, 

Taddy  Serjt,  having  obtained  a  rule  nisi  accordingly, 

Wilde  Serjt.,  who  shewed  cause,  argued  that  there  was  no  considera- 
tion for  the  promise  made  by  the  executrix  to  pay  out  of  her  own  ef- 
fects; and  that  even  if  there  were,  it  was  void  under  the  statute  of 
frauds,  as  not  being  in  writing.  If  the  promise  of  the  executrix  were 
void,  there  was  no  consideration  for  the  plaintifi's  promise  to  give  her 
time;  and  if  that  promise  was  without  consideration,  it  was  also  void. 
The  plaintiff  was  not  bound  by  it,  for  he  was  always  entitled  to  be 
paid  out  of  the  testator's  assets,  and  obtained  no  better  security  by  the 
executrix's  promise.  He  might,  therefore,  have  sued  the  executrix  at 
any  time  notwithstanding  his  promise,  so  that  in  effect  no  time  was  le- 
gally given  her. 

Taddy.  The  plaintiff's  remedy  against  the  acceptor  was  in  effect  sus- 
pended, and  that  is  sufficient  to  discharge  the  drawer.  But  for  the  pro- 
mise given  by  the  defendant  the  plaintiff  would  have  sued  at  once  on 
the  bill.  The  promise  to  pay,  if  proceedings  were  stayed,  was  in  sub- 
stance a  promise  to  pay  out  of  the  assets;  and  the  stay  of  proceedings 
was  a  sufficient  consideration  for  such  a  promise.  But  if  time  was  given, 
it  is  immaterial  whether  there  was  a  consideration  for  giving  it  or  not. 
In  Tindall  v.  Brown,  1  T.  R.  169,  Bidlcr  I.  says,  "as  to  giving 
time,  the  holder  does  it  at  his  peril.  In  no  case  has  it  been  tietcrmined 
that  the  indorser  is  liable  after  the  holder  of  the  note  has  given  time  to 
the  maker."  In  that  case  there  was  no  consideration  for  the  time  given 
by  the  holder,  nor  (>id  he  obtain  by  it  any  other  security. 

Cur.  adv.  vnll. 

Best  C.  J.  A  creditor  by  giving  furHior  time  of  paymonl,  under- 
takes that  be  will  not,  during  the  lime  given,  receive  the  (lcl)l  from  any 
.surety  of  the  debtor,  for  the  instant  that  a  surety  paid  the  d(i)t  he  would 
have  a  right  to  recover  it  against  his  principal.  The  creditor,  there- 
fore, by  receiving  his  debt  from  the  surety  would  indirectly  deprive  the 
debtor  of  the  advantage  that  he  had  stipulated  to  give  him.  If  the  cre- 
ditor had  received  from  his  debtor  a  consideration  for  the  engagement 
to  give  the  stipulated  delay  of  payment  of  the  debt,  it  would  he  injus- 
tirn  to  him  to  force  him  to  pay  it  to  any  one  before  the  day  given.  If 
to  prevent  the  surely  fiom  suing  the  piincipal,   the  crcflilor  refuses  to 


128  PiiiLi'oT  V.  Briant.   \\.  T.  1828. 

receive  the  debt  from  tlic  surety  until  the  time  given  to  tlic  debtor  for 
paynient  by  the  new  agreement,  the  surely  must  be  altogether  dis- 
charged, otherwise  he  might  be  in  a  situation  worse  than  he  was  in  by 
his  contract  of  suretyship.  If  he  be  allowed  to  pay  the  debt  at  the  lime 
when  he  undertook  that  it  should  be  paid,  the  principal  debtor  might 
liavc  the  means  of  repaying  him.  Before  the  expiration  of  the  extend- 
ed jieriod  of  payment  the  principal  debtor  might  have  become  insolvent. 
A  creditor,  by  giving  time  to  the  principal  debtor,  in  equity,  destroys 
the  oblig:Uion  of  the  sureties;  and  a  court  of  equity  will  grant  an  injunc- 
tion to  restrain  a.  creditor,  who  has  given  further  time  to  the  principal, 
from  bringing  an  action  against  the  surety.  This  equitable  doctrine 
courts  of  law  have  applied  to  cases  arising  on  bills  of  exchange. 

The  acceptor  of  a  bill  of  exchange  is  considered  as  the  principal 
debtor;  all  the  other  parties  to  the  bill  are  sureties  that  the  acceptor 
shall  pay  the  bill,  if  duly  presented  to  him  on  the  day  it  becomes  due, 
and  if  he  does  not  then  take  i4;  up,  that  they,  on  receiving  notice  of  its  non- 
payment, will  pay  it  to  the  holder.  If  the  holder  gives  the  acceptor  further 
lime  for  payment,  without  the  consent  of  the  drawer  or  endorsers,  he  dis- 
charges them  from  all  the  liability  that  they  contracted  by  becoming 
parties  to  the  bill:  but  delay  in  suing  the  acceptor  will  not  discharge 
the  drawers  or  endorsers,  because  such  delay  does  not  prevent  tjiem 
from  doing  what,  on  receiving  notice  of  non-payment  by  the  acceptor, 
they  ought  to  do;  namely,  pay  the  bill  themselves. 

The  time  of  payment  must  be  given  by  a  contract  that  is  binding  on 
the  holder  of  the  bill;  a  contract,  without  consideration,  is  not  binding 
on  him;  the  delay  in  suing  is,  under  such  a  contract,  gratuitous;  not- 
withstanding such  contract,  he  may  proceed  against  the  acceptor  when 
he  pleases,  or  receive  the  amount  of  ihc  bill  from  the  drawer  or  endor- 
sers. As  the  drawer  and  endorsers  are  not  prevented  from  taking  up 
the  bill  by  such- delay,  their  liability  is  not  discharged  by  it;  to  hold 
them  discharged  under  such  circumstances,  would  be  to  absolve  them 
from  their  engagements,  without  any  reason  for  so  doing.  In  the  case 
of  the  partners  of  the  Jirundel  Bank  v.  Goble,  which  is  to  be  found  in 
a  note  to  Cliitty  on  Bills,  296,  and  the  accuracy  of  which  note  is  proved 
by  my  Brother's  report  to  us  of  what  passed  at  the  trial  of  the  cause  be- 
fore him,  that  point  is  decided,  Tlie  acceptor  applied  to  the  holders 
for  indulgence  for  some  months;  they,  in  reply,  vvrote  to  the  acceptor, 
informing  him  that  they  would  give  him  the  time  that  he  required,  but 
that  they  should  expect  interest.  On  a  motion  for  a  new  trial,  the  Court 
of  King's  Bench  held,  that  as  no  fresh  security  was  taken  from  the 
acceptor,  the  agreement  of  the  plaintifis  to  wait  wjis  without  considera- 
tion, ?nd  did  not  discharge  the  drawer.  This  is  a  stronger  case  than 
the  present.  In  our  case  thejp  is  no  agreement  for  any  particular  time, 
nor  any  consideration  for  the  giving  the  time  that  was  given  to  the  ac- 
ceptor. 

If  the  promise  made  by  the  executrix  of  the  acceptor  be  considered 
to  be  a  promise  to  pay  the  debt,  with  interest,  out  of  the  assets  of  the 
executrix,  it  gives  no  claim  to  the  holder  beyond  what  the  bill  gave 
him.  The  executrix  was,  before  that  promise  was  made,  bound  to  pay 
principal  and  interest  out  of  her  testator's'cfrects.  If  it  is  to  be  taken  to  be 
a  personal  promise  of  the  executrix,  it  is  void  under  the  statute  of  frauds, 
not  being  in  writing.      The  holder,  therefore,   had   no  better  security. 


4  BlNGHAM;  717.  129 

nor  any  advantage  beyond  what  the  bill  had  given  him.  We  hesitated, 
only,  in  consequence  of  what  fell  from  Mr.  Justice  Buller,  in  Tindall 
and  Brown.  IJut  in  that  case  there  was  no  notice  by  the  holder  to  the 
defendant  of  the  dishonour  of  the  note.  The  opinion  of  Buller  is  not 
the  ground  on  which  the  Court  gave  the  judgment,  and  that  opinion  is 
overruled  by  the  case  in  Chitty. 
The  rule  for  a  nonsuit  must  be 

Discharged. 

MACLEAN  V.  DUNN  and  WATKINS,  who  survived  AUSTIN. 

p.  122. 

1.  If  A.,  without  authority,  makes  a  contract  in  writing  forthc  purchase  of  goods 
by  B. ,  and  B.  subsequently  ratifies  the  contract,  such  ratification  renders  A.  an 
agent  sufficiently  authorised  to  make  tlie  contract  under  the  statute  of  frauds, 

2.  Where  tlie  purchaser  of  goods  refuses  to  take  them,  the  vendor,  by  re-selling 
them,  does  not  preclude  himself  from  recovering  damages  for  the  breach  of 
contract. 

This  was  a  special  action  of  assumpsit  for  not  accepting  and  paying 
for  a  quantity  of  Russian  and  German  wool.  At  the  trial  before  Best 
C.  J.,  London  sittings  after  Michaelmas  term  1S2G,  the  facts  of  the  case 
as  far  as  they  are  material  to  the  questions  here  noticed,  were  as  follows: 

The  defendants  were  carrying  on  business  in  London  as  druggists 
and  dry-salters,  when  Ebsworth,  a  London  wool-broker,  met  Watkins 
at  Manchester,  near  which  place  Watkins  lived,  and  on  the  part  of  the 
plaintiff  agreed  to  sell  the  defendant  1G5  bags  of  Russian  and  German 
wool,  to  be  paid  for  partly  by  14.5  bags  of  Spanish  wool,  which, 
on  the  part  of  the  defendants,  he  agreed  to  sell  to  the  plaintiff,  and  partly 
by  acceptances  or  cash,  on  certain  terms  specified  in  the  following 
bought  and  sold  note,  which  he  delivered  to  the  plaintiff's  clerk. 

<•  D.  Maclean,  Esq.  <•'  Manchester,  2Sth  March,  1825. 

"Sin — We  have  sold  for  your  account,  to  Messrs.  Dunn,  Austin, 
Watkins,  and  Co.  1G6  bags  of  Russian  and  German  wool,  viz.  [here 
followed  a  specification  of  the  wools,  as  in  the  note  made  out  for  the  de- 
fendants, amounting  to  IG.o  bags  only,  the  insertion  of  IGG  having  been 
admitted  on  the  trial  to  have  arisen  by  mistake  in  the  casting,]  after  de- 
ducting the  amount  of  115  bogs  of  Spanish  wool  sold  you,  the  balance 
to  be  paid  for  by  an  acce|)tanro  at  four  months,  with  2\  per  cent,  dis- 
count, or  in  cash  with  5  per  ct:nt.  discount,  at  your  option. — ('ommis- 
sion  for  polling,  1  per  cent.  "  IOiisvvorth  and  liADHAiM." 

*'  D.  Maclean,  Esq.  <«  Manchester,  2Sth  March,  182.5. 

"Sir, — Wv.  have  bought  for  your  account,  of  Messrs.  Dunn,  Austin, 
Watkins,  and  Co.,  14.5  bags  of  Spanish  wool,  viz.  [here  followed  a 
.specification  of  11.5  l)ngs  of  wool,]  th(!  amount  of  145  bngs  to  bo  deduct- 
ed from  the  lfi.5  bags  of  Russian  and  German  wool  bought  of  you  this 
dny,  and  the  balance  to  be  paid  for  by  an  acceptance  at  four  months  at 
2\  per  cent,  discount,  or  in  cash,  with  5  per  cent,  discount,  on  the  1st 
July,  at  your  option. — Commission  for  purchasing,  h  per  cent. 

"Ebsworth  and  IJAniiAM." 

This  bought  and  sohl  note  was  written  on  one  sheet  of  pnpcr. 

f'orrcsponding  liought  and  sold  notes,  rnitl(/li.'i  tniitcnulis,  were  made 
out  by  Ebsworth  for  liie  dcfcridnnls.      In  these  notes  the  1st  of  July  was 

VOL.  XV.  17 


130  Maclean  r.  Dumn.  E.  T.  1828. 

fpecified  ns  the  day  for  cash  with  discount,  at  the  end  of  the  sold  note 
as  well  as  at  the  end  of  the  hought  note.  They  were  never  delivered  to 
either  of  the  defendants.  Ebsworth,  however,  made  out  a  memorandum 
of  the  contract  in  his  broker's  book,  called  a  contract-book,  which  was 
not  signed  by  him,  and  shewed  this  memorandum  to  Watkins,  on  the 
day  it  was  entered,  March  2S,  1825. 

Watkins  assented  to  the  contract,  provided  Dunn's  consent  could  be 
obtained.  Ebsworth  had  had  no  previous  communication  with  Dunn, 
but  saw  him  about  the  beginning  of  the  next  month,  when,  as  Ebsworth 
swore  at  the  trial,  Dunn  assented  to  the  bargain,  and  said  he  was  perfectly 
satisfied  with  what  was  done. 

On  the  19th  of  that  month  Dunn  told  Ebsworth  he  would  have  nothing 
to  do  with  the  contract,  which  Ebsworth  communicated  to  the  plaintiff. 

Plaintiff,  nevertheless,  in  May  addressed  the  defendants  collectively 
on  the  subject  of  the  delivery  of  the  wool,  when  Watkins  wrote  and 
referred  him  to  Ebsworth,  who  afterwards,  witli  the  assent  of  Watkins, 
and  in  the  name  of  the  defendants  collectively,  sold  and  delivered  sixty- 
eight  bags  of  the  German  wool  to  Williamson  and  Jones. 

In  July  the  plaintiff  transmitted  the  invoice  of  the  165  bags  of  wool 
to  Manchester,  addressed  to  the  defendants,  and  requested  payment  of 
what  was  due  to  him. 

In  September  he  requested  them  to  receive  and  pay  for  the  remainder 
of  the  wools  undelivered,  and  gave  notice,  that  unless  the  account  be- 
tween him  and  the  defendants  were  liquidated  by  the  1st  of  November, 
the  wool  remaining  undelivered  would  be  put  up  to  public  sale  on  that 
day,  and  the  defendants  held  responsible  for  any  loss. 

The  defendants  having  declined  to  receive  them,  they  were  sold  at  a 
loss;  whereupon  the  present  action  was  commenced. 

It  was  objected  at  the  trial,  on  behalf  of  the  defendants,  that  there  wa3 
no  valid  contract  between  the  parties,  the  broker's  book  not  having  been 
signed,  and  the  bought  and  sold  notes  not  having  been  delivered  to  each 
party;  that  Ebsworth  having  no  authority  from  Dunn  at  the  time  of  the 
bargain,  was  not  an  agent  authorized  within  the  meaning  of  the  statute 
of  frauds;  that  the  bought  and  sold  note  given  to  the  plaintiff  varied  from 
that  made  out  for  the  defendants,  the  latter  specifying  the  1st  of  July  as 
the  day  for  cash  with  discount,  at  the  end  of  the  sold  as  well  as  of  the 
bought  note;  the  former  specifying  that  day  only  at  the  end  of  the 
bought  note;  and  that  the  plaintiff  had  rescinded  the  contract,  by  the 
delivery  of  part  of  the  wool  to  Ebsworth,  and  the  sale  of  the  remainder. 

A  verdict  was  taken  for  the  plaintiff,  with  leave  for  the  defendants  to 
move  the  Court  upon  these  points. 

Taddy  Serjt.  accordingly  obtained  a  rule  niai  to  enter  a  nonsuit  or 
have  a  new  trial,  on  these  and  sundry  other  questions  of  law  and  fact. 

With  respect  to  the  alleged  variance,  the  Court  held,  that  as  the  plain- 
tiff's bought  and  sold  note  was  all  written  on  the  same  sheet  of  paper, 
the  1st  of  July,  specified  at  the  end  of  the  bought  note,  must  be  taken  to 
apply  equally  to  the  contract  in  the  sold  note,  and  that  therefore  the  in- 
ptrument  corresponded  sufficiently  with  the  bought  and  sold  note  made 
out  for  the  defendants. 

If  the  subsequent  ratification  by  Dunn  constituted  Ebsworth,  by  rela- 
tion, an  agent  duly  authorized  within  the  meaning  of  the  statute  of  frauds, 
at  the  time  of  the  contract,  a  bought  and  sold  note  having  been  made  out 
and  signed  by  him  on  thepart  of  the  defendants,  his  delivering  it  to  them 


4  Bingham, 722.  131 

and  his  signing  the  contract-book  would  not  be  essential  to  the  validity 
of  the  contract: 

It  is  only  necessary,  therefore,  to  report  what  was  said  on  the  points, 
Whether  a  person  who  makes  a  contract  for  another,  without  due  authori- 
ty, becomes,  on  the  ratification  of  the  contract  by  the  party  to  be  charged, 
a  sufficient  agent  to  bind  him,  within  the  meaning  of  the  statute  of  frauds, 
and.  Whether  the  disposal  by  the  vendor,  of  goods  sold,  with  a  view  to 
prevent  further  loss  upon  the  vendee's  refusing  to  receive  them,  be  a 
rescinding  of  the  contract. 

Wilde  and  Russell  Serjts.  for  the  plaintiff,  referred  to  Chapliyi  v. 
Rogers,  1  East,  192;  Hinde  v.  TVhilehouse,  7  East,  558;  Ward  v. 
Evans,  Salk.  442;  Kinnitz  v.  ^S'z/rry,  Paley,  Pr.  &.  Ag.  143,  note, 
2d  edit.;  Hagedorn  v.  Levy,  6  Taunt.  162;  Greaves  v.  *ilshlin,  3 
Campb.  425. 

Taddy  and  Spankie  Serjts.  conti-a. 

Best  C.  J.  It  has  been  argued,  that  the  subsequent  adoption  of  the 
contract  by  Dunn  will  not  take  this  case  out  of  the  operation  of  the  statute 
of  frauds;  and  it  has  been  insisted,  that  the  agent  should  have  his  authority 
at  the  time  the  contract  is  entered  into.  If  such  had  been  the  intention  of 
the  legislature,  it  would  have  been  expressed  more  clearly ;  but  the  statute 
only  requires  some  note  or  memorandum  in  writing,  to  be  signed  by  the 
party  to  be  charged,  or  his  agent  thereunto  lawfully  authorized;  leaving  us 
to  the  rules  of  common  law,  as  to  the  mode  in  which  the  agent  is  to  receive 
his  authority.  Now,  in  all  other  cases,  a  subsequent  sanction  is  consid- 
ered the  same  thing  in  effect  as  assent  at  the  time.  Omnis  ratihabitio 
retrotrahilnr  et  mandato  cequiparatxir:  and  in  my  opinion,  the  subse- 
quent sanction  of  a  contract  signed  by  an  agent,  tiikes  it  out  of  the  operation 
of  the  statute  more  satisfactorily  than  an  authority  given  beforehand. 
Where  the  authority  is  given  beforehand,  the  party  must  trust  to  his  agent; 
if  it  be  given  subsequently  to  the  contract,  the  party  knows  that  all  has 
been  done  according  to  his  wishes.  But  in  Kinnitz  v.  Surry,  where  the 
broker,  who  signed  the  broker's  note  upon  a  sale  of  corn,  was  the  seller's 
agent.  Lord  EUenhurnugh  held,  that  if  the  buyer  acted  upon  the  note, 
that  was  such  an  adoption  of  his  agency  as  made  his  note  sufficient  within 
the  statute  of  frauds:  and  in  Suamcs  v.  Spencer,  1  Dow.  &  Ry.  32, 
where  A.  and  B.  bein^;  jointly  interested  in  a  quantity  of  oil,  A.  enter- 
ed into  a  contract  for  the  sale  of  it,  without  the  autliorily  or  knowledge 
of  B.,  wlio,  upon  receiving  information  uf  the  circumstance,  refused  to 
be  bound,  but  aflerwurds  assented  by  parol,  and  samj)!cs  wore  delivered 
to  the  vendees;  it  was  held,  in  an  action  against  the  vendees,  that  B.'s 
subsequent  ratification  of  the  contract  rendered  it  binding,  and  that  it  was 
to  be  considered  as  a  contract  in  writing  within  the  statute  of  frauds.  That 
is  an  express  decision  on  the  point,  that  under  the  statute  of  frauds  the 
ratification  of  the  principal  relates  back  to  the  time  when  the  agent  made 
the  contract. 

Then,  with  regard  to  the  resale,  it  seems  clnar  to  me,  that  it  did  not 
rescind  the  contract.  It  is  admitted  tli.it  porishahio  articles  may  be  re- 
sold. It  is  difficult  to  say  what  may  bo  esteemed  perishable  articles,  and 
what  not:  but  if  articles  arc  not  pf:rishal)l(!,  price  is,  and  may  alter  in  a 
few  days,  or  a  few  hours.  In  that  resj)ect  there  is  no  difference  bf^lwcen 
one  commodity  and  another.  It  is  a  practice,  therefore,  founded  on 
good  sense,  to  make  a  resale  of  a  disputed  article,  and  to  hold  the  original 
contractor  responsible  for  the  difference.  The  practice,  itself  affords  soinc 
evidence  of  the  law,  and  we  ought  not  to  oppose  it,  except  on  the  au- 


132  Lucas  r.  Nockklls.  E.  T.  1828. 

Ihority  of  ilcciilcd  cases.  Those  wliicli  have  been  cited  do  not  apply. 
Where  a  man,  in  an  action  lor  goods  sold  and  delivered,  insists  on  liaving 
from  the  vendee  tiic  price  at  wliich  he  contracted  to  dispose  of  his  goods, 
he  cannot,  j)erhaps,  consistently  with  such  a  demand,  dispose  of  them 
to  another;  hut  if  he  sues  for  damages  in  consequence  of  the  vendee's 
refusing  to  complete  his  contract,  it  is  not  necessary  that  he  should  re- 
tain dominion  over  the  goods:  he  merely  alleges  that  a  contract  was 
entered  into  for  the  purchase  of  certain  articles,  that  it  has  not  been  ful- 
lilled,  and  that  he  has  sustained  damages  in  consequence.  There  is  no- 
tiiing  in  this  which  requires  that  the  property  should  be  in  his  hands  when 
he  commences  the  suit;  and  it  is  recjuired  neither  by  justice,  nor  by  the 
practice  of  the  mercantile  world. 

In  actions  on  the  warranty  of  a  horse,  it  is  the  constant  practice  to  sell 
the  horse,  and  to  sue  to  recover  the  difference.  The  usage  in  every 
branch  of  trade  is  equally  against  the  objection  which  has  been  raised  on 
the  part  of  the  defendant*.  It  is  urged,  indeed,  that  in  contracts  enter- 
ed into  by  the  East  India  Company,  the  power  of  resale  is  expressly 
provided  for,  in  case  the  vendee  should  refuse  to  perform  his  contract. 
That  is  only  e.r  ahundanti  cauiela,  and  it  has  never  been  decided  that 
a  resale  of  the  goods  is  a  bar  to  an  action  for  damages  for  non-perform- 
ance of  a  contract  to  purchase  them:  the  contrary  has  been  held  at  Nisi 
Prius.  But,  without  referring  to  a  Nisi  Prius  case  as  authority,  we  are 
anxious  to  confirm  a  rule  consistent  with  convenience  and  law.  -It  is 
most  convenient  that  when  a  party  refuses  to  take  goods  he  has  purchas- 
ed, they  should  be  resold,  and  that  he  should  be  liable  to  the  loss,  if  any, 
upon  the  resale.  The  goods  may  become  worse  the  longer  they  are 
kept;  and,  at  all  events,  there  is  the  risk  of  the  price  becoming  lower. 

Rule  discharged.  («) 

(a)  Park  J.  took  no  part  in  the  hearing  or  decision  of  the  case. 


(IN  THE  EXCHEQUER  CHAMBER.) 

LUCAS,  THOMPSON,  DAVIS, BULL,  T.  LINGHAMand  EICKE, 
v.  NOCKELLS.— p.  729. 

Plaintiff,  a  ship-owner,  agreed  by  charter-party  with  T.  to  take  any  goods  on 
board  whicli  T.  sliouUl  sliip,  and  convey  them  from  Van  Diemcn's  Land  to 
London.  T.  covenanted  to  pay  freight  at  the  rate  of  15*.  per  ton  per  month, 
ten  days  after  the  delivery  of  the  cargo,  and  then  consigned  a  cargo  to  defen- 
dants by  a  bill  of  lading,  under  v/hich  they  or  their  assigns  were  to  pay  freight 
as  per  charter. 

T.  being  indebted  to  defendants,  they,  on  the  arrival  of  the  ship  in  London,  sued 
out  a  writ  oiji.fa.  and  took  tlie  cargo  forcil)ly  from  the  ship,  exhil)iting  the 
sheriff's  warrant  to  the  captain;  they  did  not  sell  under  X.\\cfi.  fa.  but  after- 
wards made  affidavit  at  the  custom-house  that  they  landed  the  cargo  as  the 
iiniyortcrs. 

Plaintiff  having  sued  them  in  trespass  for  entering  his  ship  and  taking  the  cargo, 
and  to  a  justification  under  tlie  writ,  having  replied  de  injuria  abacjue  residuo 
caus£,  and  having  new-assigned  that  the  defendants  took  the  goods  for  other 
purposes  than  those  mentioned  in  the  pleas.  Held,  that  it  was  competent  to 
the  Judge  to  leave  it  to  the  jury  to  say,  whether  the  goods  were  6onay?rfe  taken 
under  the  execution,  or  whether  the  execution  was  resorted  to  as  a  colour  to 
enable  the  defendants  to  get  possession  of  and  land  the  cargo  as  importers,  with- 
out subjecting  themselves  to  the  claim  or  question  that  might  have  arisen  ii 
they  had  acc^ptcd  them  under  the  bill  of  lading. 


4  Bingham, 729.  133 

Error  on  a  bill  of  exceptions. 

Nockells,  the  plainlid'  below,  declared  in  trespass  fur  breaking  and 
entering  his  ship,  making  a  noise  and  disturbance  in  it  for  two  days, 
breaking  open  the  hatches,  entering  the  hold,  and  taking  a  large  quanti- 
ty of  oil,  whalebone  fins,  hides,  &c.  in  the  possession  of  the  plaintiff 
below,  on  board  the  ship,  and  on  which  he  had  alien  to  the  amount  of 
6000/.  for  freight,  due  to  him  as  owner  of  the  vessel,  and  for  carrying 
away  and  converting  the  goods  to  their  own  use,  whereby  plaintiff 
below  was  deprived  of  his  lien,  and  lost  his  freight. 

Second  count,  for  taking  possession  of  his  ship  and  goods. 

Third,  for  taking  out  of  a  certain  other  ship  the  goods  of  the  plain- 
tiff below. 

The  defendants  below  (Lucas  and  Thompson  jointly,  and  the  others 
severally)  justified  the  trespass  under  a  judgment  recovered  in  the  Court 
of  King's  Bench,  by  R.  Hopley,  G.H.  Lingham,  and  T.  Lingham,  against 
one  Nathaniel  Thornton,  for  a  debt  of  20,000/.  and  costs,  upon  which  a 
testatum  fi.  fa.  was  sued  out,  directed  to  the  sheriff  of  Middlesex,  and 
indorsed  to  levy  6000/.  besides  expenses,  which  writ  was  delivered  to 
Lucas  and  Thompson,  sheriff  of  Middlesex,  to  be  executed,  wlio  made 
out  their  warrant  in  writing  to  Davis  and  liull,  commanding  them  that 
of  the  goods  and  chattels  of  Thornton  they  should  cause  to  be  made  the 
debt  and  costs  aforesaid.  It  was  then  averred,  that  at  the  time  when, 
&.C.  there  were  divers  goods  and  merchandizes  belonging  to  Thornton  on 
board  the  ship  in  the  declaration  mentioned,  and  that  Davis  and  Bull 
being  bailiffs  (assisted  by  T.  Lingham  and  Eicke),  before  the  return  of 
the  writ,  entered  into  the  ship,  seized  Thornton's  goods  and  merchan- 
dizes, sold  them,  and  by  the  sale  made  and  levied  the  amount  of  1950/. 
towards  satisfaction  of  the  debt  and  costs  aforesaid. 

The  plaintiff  below  replied  that  the  defendants  below  of  their  own 
wrong,  and  without  the  residue  of  the  cause  by  them  in  their  plea  alleg- 
ed, committed  the  said  trespasses. 

lie  also  new-assigned  that  the  defendants  below,  for  other  purposes 
than  those  mentioned  in  the  pleas,  entered  the  ship,  and  took  the  goods, 
and  that  more  violence  was  resorted  to  than  was  necessary.  Upon  all 
which  issue  was  joined. 

At  the  trial  before  Lord  Tenlerden  C.  J.,  London  sittings  after 
Trinity  term  18'.i(j,  it  ajjpcarcil,  that  the  plaintifl"  below  was  owner  of  the 
shi|)  Emerald;  that  by  a  charter-party  of  the  Sth  August  1822,  executed 
at  Port  Jackson,  New  South  Wales,  by  the  son  of  the  plaintiff  below, 
under  a  power  of  altorne}',  (and  reciting  a  former  charter-party  of  April 
1821,  by  which  the  |)laintiff  below  diil  grant,  and  to  freight  let,  and 
Nathaniel  Thornton  did  hire  and  take  to  freight  all  the  said  ship  Emerald 
for  the  term  of  a  year  from  May  1st,  1S21,  with  an  agrccniont  that  if 
the  ship  should  be  employed  more  than  a  year,  she  should  be  paid  for 
at  the  rate  of  a  guinea  per  ton  per  month,  reciting,  also,  that  the  parties 
ha  I  agreed  and  difl  agree  to  put  an  end  to  and  (Ictcrmino  that  charter- 
party  and  enter  intoalresh  one), 'the  plaintiff  below  and  William  Elliott, 
the  master  of  the  ship,  jointly  and  severally  covenanted  with  Nathaniel 
Thornton  as  follows,  that  is  to  say,  <'  that  the  ship  should  be  made  ready 
and  fitted,  and  should  take  on  board  all  such  goods  as  N.  Thornton 
should  tender  to  William  Klliott,  and  should  with  all  convenient  dispatch 
|)rocecd"  with  her  cargo  to  London,  and  should  discharge  at  London, 
to  Thornton  or  his  assigns;  Thornton  cunvcnanting  to  pay  *'  freight  at 


134  Ia(  AS  V.  NocKELLS.  E.  T.  1828. 

the  rate  of  1 55.  per  ton  per  month,"  ten  daya  after  the  delivery  of  the 
cargo. 

Ihuler  this  chartcr-pnrty,  a  cargo  of  oils,  furs,  hides,  &c.  was  shipped 
by  Tliornton,  at  Van  Diemen's  Land,  for  London,  and  Elliott  signed  a 
bill  of  lading,  by  which  this  cargo  was  to  be  delivered  to  Messrs.  Hop- 
ley  and  Linghams,  or  their  assigns,  *<  he  or  they  paying  freight  for  the 
same  as  per  charter,  with  primage  and  average  accustomed." 

In  June  1S23,  the  ship  arrived  at  Gravesend,  when  G.  H.  Linghani 
went  on  board,  and  after  inquiring  about  the  cargo,  and  receiving  letters 
from  Thornton,  said  he  wished  the  ship  to  go  to  Brewer's  Quay;  the 
plaintiir  below  insisted  on  going  into  the  London  Docks,  but  after 
shewing  Lingliam  the  ship's  manifest,  by  which  the  goods  were  con- 
signed to  Hopley  and  Linghams,  agreed  that  the  ship  should  go  to 
Brewer's  Quay,  if  Hopley  and  Lingiiams  would  pay  freight  for  the 
cargo  according  to  the  first  charter-party.  The  plaintiff  below  afterwards 
offered  to  take  freight  at  the  lower  rate  mentioned  in  the  second  charlei'- 
party,  but  Lingham  made  no  answer.  After  the  ship  had  been  report- 
ed at  the  custom-house,  plaintiff  below  informed  Hojiley  of  that  circum- 
stance, and  offered  to  deliver  the  cargo  where  Hopley  and  Linghan)s 
pleased,  if  they  would  agree  to  pay  the  freight;  but  Hopley  said  he 
would  give  no  promise,  and  after  some  altercation,  said  to  the  plaintiff 
below,  "  I  will  make  something  of  you  before  I  have  done  with  you." 
On  the  3d  of  July,  Hopley  ^md  Linghams  who  were  creditors  of 
Thornton  to  a  considerable  amount,  issued  the  fieri  Jacias  mentioned 
in  the  declaration,  Thornton  being  in  embarrassed  circumstances;  and  on 
the  4th,  T.  Lir.gham,  accompanied  by  Eicke,  his  attorney,  and  Bull 
and  Davis,  the'sheriff's  officers,  entered  the  ship  with  the  sheriff's  war- 
rant, which  they  exhibited  to  the  plaintiff  below,  and  although  required 
by  him  to  leave  the  ship,  broke  open  the  hatches,  which  had  been  closed 
to  prevent  them  from  taking  the  cargo,  and  proceeded  to  unload  it  from 
that  time  to  the  17lh,  by  which  day  the  whole  was  unloaded.  When 
the  sheriff's  officers  came  on  board,  the  captain  of  the  ship  told  the  plain- 
tiff below  he  thought  he  was  wrong  in  detaining  the  cargo,  as  the  freight 
was  not  due  till  ten  days  after  the  delivery;  ])laintiff  below  said,  "  He'd 
bedanincd  if  he  cared,"  and  ordered  the  captain  not  to  allow  the  cargo  to 
be  taken.  The  captain  had  signed  three  bills  of  lading,  one  of  which  he 
gave  to  the  plaintiff  below,  and  left  the  other  two  with  Thornton.  Hop- 
ley  and  Linghams  indemnified  tlie  sheriff,  and  it  was  proved  that  Davis 
had  said  the  sale  of  the  cargo  taken  out  produced  1950/. 

On  the  4th  July  Hopley  and  Linghams  presented  a  memorial  to  the 
commissioners  of  customs,  as  follows: — "Honourable  Sirs, — We  have 
in  the  ship  Emerald,  from  New  South  Wales,  2G0  casks  of  train  oil, 
which  we  have  paid  duty  on,  and  are  desirous  of  landing  at  the  legal 
quays." 

On  the  10th  July,  the  captain  of  the  ship  made  affidavit  at  the  custom- 
house that  the  cargo  (describing  it)  was  British  property,  and  to  this 
affidavit  was  annexed  another,  as  follows — 

**  Thomas  Lingham,  for  self  and  Co.,  importers,  maketh  oath  that  the 
within-mentioned  cargo  is  British  property." 

On  the  7th  of  August,  Hopley  and  Linghams  annexed  to  a  catalogue 
of  the  cargo  for  sale  by  auction,  a  certificate  that  the  lots  had  been  im- 
ported with  twelve  months;  had  not  been  previously  sold  or  parted  with;, 
and  that  that  was  the  first  sale. 

They  also  addressed  a  note  to  the  auctioneer  as  follows:   **Wc  ap- 


4  Bingham,  729.  135 

point  you  to  buy  for  our  account  this  day  the  following  goods,  at  the 
prices  annexed,  being  our  property."  This  was  concluded  by  a  de- 
scription of  the  cargo.  These  two  latter  instruments  were  left  by  Hop- 
ley  and  Linghams  at  the  excise-office,  and  the  cargo  was  put  up  to  sale 
by  auction,  under  their  direction,  on  the  7th  of  August. 

The  Chief  Justice  charged  the  jury  that  he  was  of  opinion  that  the  pos- 
session of  the  ship  was  in  the  plaintiff  below  at  the  time  of  the  execution, 
and  that  the  question  for  their  consideration  was,  whether  the  goods 
were  really  and  bona  fide  taken  by  virtue  of  the  said  writ  of  execution; 
if  they  were,  the  verdict  ought  to  be  for  the  defendants  below;  or, 
whether  the  execution  was  had  recourse  to  merely  as  a  colour  to  enable 
the  defendant  Lingham,  and  his  partners,  who  were  the  consignees,  to 
take  said  goods,  and  so  get  possession  of  them,  and  land  them  as  impor- 
ters, without  subjecting  themselves  to  the  claim  or  question  that  mig'it 
have  arisen  if  they  had  accepted  them  under  the  bill  of  lading;  in  which 
latter  case  the  verdict  ought  to  be  for  the  plaintiff  below.  Whereupon 
the  counsel  on  the  part  of  defendants  below  objected,  first,  that  the  ques- 
tion proposed  by  the  Chief  Justice  for  the  consideration  of  the  jury  was 
not  open  for  their  consideration  upon  the  pleadings  in  the  cause;  for  if 
there  was  ground  for  imputing  fraud,  it  ought  to  have  been  specially 
replied;  and  secondly,  that  none  of  the  counts  mentioned  in  the  declara- 
tion had  been  proved,  and  that  the  Chief  Justice  ought  to  direct  the  jury 
upon  the  evidence  so  produced  as  aforesaid,  that  the  possession  of  the 
said  ship  was  not  at  the  time  of  the  entering  the  same  by  defendants 
below,  by  law  vested  in  the  plaintiff  below,  and  that  the  plaintiff  below- 
had  no  lien  on  the  said  goods,  and,  consequently,  that  plaintiff  below  was 
not  competent  to  maintain  the  action.  Upon  these  objections  a  bill  of  ex- 
ceptions was  tendered  and  signed,  and  the  jury  gave  their  verdict  for 
the  plaintiff  below,  with  damages  1950/. 

Three  points  were  proposed  for  argument  in  this  case. 

First,  Whether  the  plaintiff  below,  notwithstanding  the  charter-party, 
had  still  sutficient  possession  of  the  ship  to  maintain  an  action  of  tres- 
pass. 

Secondly,  Whether  he  had  a  lion  on  (he  goods  seized  in  respect  of 
which  he  could  sue  in  trespass  for  an  illegal  seizure  of  them. 

Thirdly,  Whether  upon  the  pleadings  in  this  cause  it  was  competent 
to  the  Lord  Chief  Justice  to  leave  it  to  the  jury  to  say,  whether  the 
goods  were  bona  fide  taken  under  the  writ  of  execution,  or  whether 
the  execution  was  resorted  to  as  a  colour  for  taking  them,  not  to  effect  a 
levy  by  virtue  of  the  execution,  but  with  a  view  to  land  Ihcin  without 
subjecting  the  defendants  below  to  the  claim  of  the  plaintiff  beluw  for 
freight. 

/".  Pollock,  for  the  defendants  below,  rited  Savillc\.C<tmpion,  2  H.  & 
A.  50.3;  Christie  v.  Lewis,  2  Ji.  &.  H.  410;  Hut  ton  v.  Bra^i^,  7  Taunt. 
It;  Railt  v.  Mitchell,  4  Cam|)b.  146;  Crowlherv.  Ihimsbotiom,  7  T. 
R.  654;  Ex  parte  PVilbran,  5  Maddox,  1;  Dr.  Grcnville  {(Jrocnvelt) 
v.  The  Collate  of  Physicians,  12  Mod.  360;  3  Rep.  26. 

Campbell  contra. 

Pollock  in  reply.  It  cannot  be  said  there  wa.^  any  fraudulent  inten- 
tion to  deprive  the  plaintillof  his  frcijiht  ;  for  it  is  not  rle;ir  that  he  was 
entitled  to  freight  ;  that  belongerl  to  the  charterer,  Tliornton,  and  the 
plaintiff  below  had  only  a  claim  against  him  under  the  charter-party 
for  the  hire  of  the  ship:  Moorsoni  v.  Kyincr,  2  M.  &  S.  303.  If  per- 
5on3  who  execute  legal  process  proceed  irregularly,  a.s  !)y  destroying, 


13G  Lucas  v.  Nockells.  E.  T.  1828. 

inslcail  of  soHiim;,  Uic  gooils  taken,  that  is  a  matter  for  wliichtlic  parties 
idjiircil  l)y  the  iiioi^iilarity  may  obtain  redress  by  application  to  the  coiul 
out  of  which  the  process  issues  ;  but  proof  that  an  execution  has  been 
irregularly  conducted  is  not  jjroof  that  the  goods  seized  were  not  seized 
under  the  writ.  If  the  party  has  the  writ  when  he  seizes,  and  the  writ 
authorizes  a  seizure,  it  is  impossible  to  say  the  goods  are  not  taken  under 
the  writ  ;  though  the  conduct  of  the  parties  subsequently  to  the  seizure 
may  be  such  as  to  call  for  reprehension.  Here  there  was  no  cause  of 
complaint  but  the  irregularity  of  handing  the  goods  over  to  the  creditor 
immediately,  without  the  formality  of  a  sale.  If  it  were  proposed  to 
impute  fraud  to  the  defendants  b.^low,  fraud  ought  to  have  been  replied. 
As  the  pleadings  stand,  the  valiLlity  of  the  seizure  under  the  execution 
cannot  be  disputed. 

Best  C.  J.  The  bill  of  exceptions  raises  three  questions  for  our  de- 
cision. First,  Was  it  competent  to  the  Chief  Justice,  in  this  cause,  to 
leave  it  to  the  jury  to  say,  whether  the  goods  were  really  and  bona  fide 
taken  by  virtue  of  the  writ  of  execution,  or  whether  the  execution  was 
had  recourse  to,  merely  as  a  colour  to  enable  the  delendants,  Hopley 
and  Lingham,  to  get  possession  of  and  land  the  goods  as  importers, 
without  subjecting  themselves  to  the  claim  that  might  have  arisen,  if 
the}''  had  accepted  them  under  the  bill  of  lading  ?  Secondly,  Whether 
the  plaintifi'  had  such  possession  of  the  ship  as  would  enable  him  to  main- 
tain trespass  ?  Thirdly,  Whether  the  plaintiff  had  any  lien  on  the  goods 
for  the  freight  due  for  bringing  them  from  Van  Diemen's  Land  to  Lon- 
don? The  counsel  for  the  defendants  below  very  properly  declined  argu- 
ing the  second  question. 

The  charter-party,  by  which  the  ship  was  let  to  freight,  contained  no 
terms  conveying  to  tlie  chartei'cr  the  possession  of  the  ship.  It  was  a 
covenant,  that  the  master  would  bring  in  her  all  the  goods  that  she  was 
capable  of  carrying.  As  the  freight,  by  the  bill  of  lading,  was  made 
payable  according  to  the  terms  of  the  charter-party,  and  as  by  the  char- 
tvr-parly  no  freight  was  due  until  ten  days  after  the  delivery  of  the  car- 
go, we  think  that  the  plaintiff  below  had  no  lien  on  the  cargo  for  the 
freight.  But  although  the  plaintiff  below  had  no  lien,  and  although 
Hopley  and  Linghams  were  entitled  to  have  the  cargo  delivered  to 
thnm  under  the  bill  of  lading,  yet  they  had  no  right  to  take  it  by  force, 
without  producing  the  bill  of  lading,  and  so  avoid  acceding  to  the  con- 
dition on  which  the  cargo  could  be  claimed  under  the  bill  of  lading, 
namely,  that  of  becoming  responsible  for  the  payment  of  the  freight,  ac- 
cording to  the  terms  of  the  charter-party.  The  special  property  which 
the  plaintiff  l)elowhad  in  the  cargo  was  sufficient  to  support  an  action  of 
trespass  against  those  who  took  it  from  him  without  authority  from  the 
owner. 

The  circumstance  of  the  plaintiff  below  having  no  lien  could  only 
operate  in  reduction  of  the  damages,  and  this  was  not  the  ground  on 
which  the  Chief  Justice's  direction  was  excepted  to.  But  the  want  of 
lien  in  the  plaintiffbelow,  as  the  freight  would  have  become  due  from 
Hopley  and  Linghams  in  ten  days  after  they  had  taken  the  cargo,  if 
they  had  claimed  it  under  the  bill  of  lading,  could  not  have  had  such  an 
effect  on  the  amount  of  daniages  as  to  render  it  proper  to  send  the  case  to 
another  trial. 

The  exception,  on  which  the  first  question  is  raised,  was  applied  to 
the  pleadinnjs  in  the  cause  ;  but  the  counsel  for  the  defendants  below  has 
insisted  in  his  argument  before  this  Court,  that  as  the  defendants  below 


4  Bingham,  729.  137 

had  a  writ  which  would  justify  their  entering  the  ship  and  taking  the 
cargo,  it  would  not  have  been  competent  to  the  Chief  Justice,  whatever 
pleadings  had  been  on  the  record,  to  direct  the  jury  to  enquire  whether 
the  defendants  below  did  the  acts  complained  of  under  the  authority 
given  to  them  by  that  writ.  In  other  words,  that  the  defendants  below 
having  authority  to  do  what  they  did,  that  authority  will  protect  them, 
although  they  did  not  act  under  it.  Perhaps,  if  the  writ  had  given  them 
authority  to  do  all  that  they  did,  we  could  not,  without  overruling  some 
decided  cases,  hold  that  the  jury  might  enquire  whether  they  were  acting 
under  the  writ  ;  but  it  will  be  found  that  the  writ  of  execution  did  not 
justify  the  conduct  of  the  defendants  below  ;  this  writ,  therefore,  could 
not  protect  them.  The  action  was  maintainable,  whether  they  entered 
the  ship  under  the  authority  of  the  writ  or  not,  if  the  writ  did  not  justi- 
fy them  in  disposing  of  the  cargo  in  the  manner  in  which  it  was  disposed 
of  by  them.  Although  they  did  enter  the  ship  under  the  writ,  yet  if  they 
dealt  with  the  cargo  in  a  different  manner  from  that  in  which  the  writ 
required  them  to  deal  with  it,  they  were  themselves  trespassers  ab  initio. 
Reason,  as  well  as  law,  says,  that  a  party  who  abuses  an  authority,  shall 
not  protect  himself  by  it.  In  the  case  of  Dije  v.  Leatherdalc  and 
Simpson,  3  Wils.  26,  the  plaintiff  complained  that  the  defendants  took 
a  certain  hog,  drove  it  away,  and  converted  it  to  their  own  use.  The 
defendants  justified,  that  they  took  the  hog  damage-feasant,  and  im- 
pounded it.  The  plaintiffs  replied,  that,  after  taking  and  impounding 
tiie  hog,  the  defendants  converted  it  to  their  own  use.  The  Court  held 
the  replication  good,  because  when  the  defendants  had  shewn  that  the 
taking  and  impounding  were  lawful,  it  became  necessary  to  re- assert  the 
converting  and  disposing  to  their  own  use  ;  for  by  that,  the  Judges  say, 
the  defendants  made  themselves  trespassers  ab  initio.  In  Reid  v.  Har- 
rison, 2  BI.  1218,  which  was  an  action  of  trespass  for  taking  goods,  the 
defendants  justified  under  an  attachment  ;  it  appearing  on  the  plea  that 
they  continued  in  possession  of  the  plaintifl's  premises  from  the  I7tli  day 
of  July  1775,  to  the  10th  January  1776  ;  the  Court  said  ''  that,  by  not 
removing  the  goods,  and  by  "continuing  so  long  on  the  plaintiff's  pre- 
mises, although  they  entered  under  the  writ  of  attachment,  they  had 
made  themselves  trespassers  ab  initio."  So,  in  tlio  present  case,  if  the 
defendants  I)elow  had  a  writ  that  would  have  justified  them  in  entering 
the  ship,  seizing  the  cargo,  and  selling  it  to  raise  the  money  to  pny  the 
debt  to  levy  the  amount  of  which  tlic  execution  was  levied,  yet,  if  they 
did  not  derd  with  the  property  according  to  the  cxigoncy  of  such  a  writ, 
hut  in  a  diffcrenl  manner,  and  thereby  occasioned  an  injury  to  the  jilain- 
tifl  below,  he  might  well  say,  **  It  is  true  that  you  had  a  writ,  but  you  did 
not  do  what  that  writ  commanded  you,  but  dealt  with  the  goods  in  a 
manner  very  different  from  ihat  which  the  writ  directed,  and,  tliercfore, 
you  arc  trespassers  ;"  this  he  has  said  hv  traversing  all  tho  plt-a  except 
the  judgment  and  writ. 

15y  his  new  assignment,  he  says,  in  effect,  **  A1iIioii<t1i  voti  had  a  writ, 
you  did  not  enter  the  ship  under  it."  TJj)on  these  pleadings  it  was  for 
the  jury  to  enquire  wljetlier  the  defendants  below  were  acting  under  Iho 
writ,  or  whether  they  obtained  the  writ  to  give  a  false  colour  to  their 
conduct. 

It  has  been  argue:!  before  us,  that  motives  are  not  exaininable,  and 
that  the  allegation,  in  pleas,  of  virtnle  ciijiis  is  not  Iraversahic.  If  a 
man  has  done  what  hn  is  justified  in  doing,  and  no  more,  the  law,  in 
many  cases,  will  not  permit  his  motives  to  be  enq-iired  into:  as  if  he  has 

VOL.    XV.  18 


138  Li  TAS  V.  NocKELi  s.   E.  T.  1828. 

a  right  to  proBCciite  for  a  crime  or  to  arrest  for  a  debt,  there  can  be  no 
enquiry  with  wliat  motives  these  acts  are  done:  but  if  he  does  more  than 
as  a  prosecutor  or  creditor  he  liad  a  right  to  do,  he  will  not  be  justified, 
and  it  becomes  proper  to  enquire  whether  the  prosecution  and  arresting 
were  not  mere  pretences.  Such  an  enquiry  is  material  for  the  purpose 
of  getting  at  the  real  nature  of  the  transaction,  and  enabling  a  jury  to 
award  proper  damages.  The  virtute  ciijus  is  sometimes  a  mere  infer- 
ence of  law,  as.  What  is  the  meaning  of  a  writ,  or  the  extent  of  authority 
given  by  it?  In  such  cases  a  question  of  law  is  raised,  and  there  can 
be  no  traverse,  for  that  withdraws  the  consideration  of  law  from  the 
Judges,  and  presents  it  to  the  jury.  But  the  virtute  cujus  sometimes 
raises  a  mixed  question  of  law  and  fact;  and  when  this  is  the  case,  there 
may  be  a  traverse,  for  that  is  the  only  mode  by  which  the  facts  are  to  be 
settled  on  which  the  law  depends.  In  Beat  v.  Siinpsoii,  1  Ld.  Raym. 
410,  Powell  i.  says,  "When  a  matter  of  law  only  is  comprised  in  a 
virtute  cifjus,  then  it  is  not  traversable.  But  matter  of  fact  in  the  vir- 
tute cujus  is  traversable."  Trehy  C.  J.  differed  from  Powell xin  this 
point,  and  said,  By  virtue  of  the  writ,  meant,  by  authority  of  the 
writ,  by  an  operation  of  law  on  the  writ,  without  any  ingredient  or  mix- 
ture of  matter  of  fact.  The  other  Judges  agreed  with  Poivell,  "and  said, 
when  the  virtute  cujus  is  mixed  with  fact,  it  may  be  traversed.  It  ap- 
pears from  1  Saund.  23.,  that  virtute  cujus  may  be  traversed,  and  he 
refers  in  support  of  this  opinion  to  Hob.  52,  and  9  Hen.  6.,  14.  &  20. 
The  learned  editor,  Mr.  Serjeant  fVilliams,  says,  "When  the  words 
virtute,  prxtextu,  per  quod,  &c.  introduce  a  consequence  from  the  pre- 
ceding matter,  they  are  not  traversable.  But  matter  of  law  connected 
with  fact,  or  rather  matter  of  right  resulting  from  facts,  is  traversable." 
In  The  Grocer^ s  Company  v.  T'hc  Jirchbishop  of  Canterbury,  3  Wils. 
234,  Lord  Chief  Justice  De  Grey  says,  in  giving  the  judgment  of  the 
Court,    ''Law  connected  with  fact  is  clearly  traversable." 

In  this  case  the  plaintiff  below  does  not,  by  his  replication  and  new 
assignment,  deny  the  motive  with  which  the  writ  of  execution  was  exe- 
cuted, or  raise  any  question  as  to  the  import  of  the  writ;  but  says, 
"Although  you  had  a  writ,  you  did  not  use  it;  you  did  not  enter  under 
the  writ,  and  1  deny  what  you  have  asserted  in  your  plea,  that  you  sold 
the  goods  and  levied  the  debt  by  such  sale,  and  paid  the  money  so  levied 
to  the  other  defendants,  w^ho  caused  the  writ  to  be  issued:  on  tl)e  con- 
trary," says  the  plaintiff  below,  "Hopley  and  Lingham  took  the  goods 
cs  indorsees  of  the  bill  of  lading,  and  they  have  made  their  sheriffs  the 
instrument  to  give  the  transaction  the  colour  of  an  execution,  that  the}'' 
might  get  the  goods  without  paying  the  freight,  and  oblige  the  plaintiff 
below  to  seek  his  remedy  against  a  charterer,  who  may  be  out  of  the 
reach  of  our  law,  or  may  be  insolvent."  These  are  facts.  These  were 
to  be  submitted  to  the  jury:  not  with  what  motive  the  writ  was  executed, 
but  whether  it  was  executed. 

it  is  not  necessary  for  us  to  decide  what  would  have  been  the  effect  on 
the  claim  of  the  plaintiff  below  for  freight,  if  the  goods  had  been  sold 
under  the  execution.  If  they  were  not  taken  and  sold  imder  the  execu- 
tion, he  has  a  right  to  take  advantage  of  it,  and  to  obtain  from  the  real 
defendants  the  freight  which  is  justly  due  from  them  to  the  plaintiff 
below. 

In  this  case  the  plaintiff  below  complains  that  the  defendants  below 
took  his  goods  and  converted  and  disposed  of  them  to  their  own  use. 
'i  he  defendants  below  Fay  that  Hopley  and  Linghams  had  a  judgment 
against  the  coHi'ig-ior  and  owner  of  ih-:^  goods;  tliat  on  thaf  judgment  they 


4  Bingham,  729.  139 

issued  a  writ  of  testatum  fieri  facias,  by  which  the  defendants,  the 
sheriffs,  were  commanded  that  of  the  goods  of  the  consignor,  they  should 
cause  to  be  levied  the  debt  and  damages  due  under  the  judgment,  and 
have  the  money  so  levied  before  our  lord  the  king  at  Westminster;  that 
the  sheriffs  made  their  warrant  under  that  writ  to  the  defendants,  the 
officers;  that  they  entered  and  took  the  goods  in  execution;  that  the 
sheriffs  sold  them,  and  by  the  sale  levied  1950/. ;  and  that  they  paid  the 
1950/.  to  Hopley  and  Linghams,  in  part  satisfaction  of  their  debt- 

The  substance  of  the  replication  is,  Although  it  is  true  there  was  such 
a  judgment  as  is  pleaded,  although  a  writ  was  sued  out,  the  defendants 
below  did  not  enter  the  ship  to  execute  that  writ.  They  did  not  proceed 
to  sell  the  goods  as  they  say  they  did.  They  did  not  levy  the  money 
and  pay  it  to  the  plaintiffs  in  the  execution;  but  the  goods  were  taken 
under  another  authorit}-,  and  for  a  purpose  different  from  that  of  levying 
the  money  due  to  the  judgment  creditor.  In  the  new  assignment  the 
plaintiff  below  says,  that  the  defendant  below,  for  other  purposes  than 
those  mentioned  in  the  pleas,  entered  the  siiip  and  took  the  goods.  If 
the  question  can  be  raised,  whether  the  goods  were  taken  under  the  bill 
of  lading  or  under  the  writ,  these  pleadings  arc  calculated  to  raise  it. 
These  put  that  question  directly  in  issue.  The  question  is  not  raised  by 
an  inference  of  law,  from  the  writ  only,  but  from  facts.  If  the  sheriffs' 
officers  had  a  warrant,  but  instead  of  proceeding  to  dispose  of  the  goods 
according  to  the  directions  in  the  warrant,  they  took  the  goods,  intend- 
ing to  keep  them  for  their  own  use,  might  not  that  be  shewn  by  their 
conduct  with  regard  to  the  goods,  and  subsequent  to  their  taking  them? 
Certainly  it  might. 

In  this  case,  the  manner  in  which  these  goods  were  disposed  of  after 
they  were  taken,  shews  as  plainly  that  they  were  not  seized  under  the 
writ,  as  if  the  officers  who  took  them  had  kept  them  for  their  own  use. 
Instead  of  being  sold  by  the  sheriff,  and  any  debt  being  levied  by  the 
Rale,  they  were  handed  over  to  Iloplcy  and  Lingham.  Iloplcy  and 
Lingham,  instead  of  taking  the  goods  as  purchasers  from  the  sheriff,  tell 
us  by  their  whole  conduct,  and  most  distinctly  by  their  oatlis,  that  they 
obtamed  the  goods  as  importers.  In  such  a  case,  is  not  the  virtit/e  ciijiis 
a  mixed  question  of  law  and  facts,  and  so,  according  to  tlic  authorities, 
that  I  have  referred  to,  traversable  ?  Is  it  consistent  with  common  sense, 
to  say,  that  although  some  of  the  defendants  below  have  sworn  they 
were  the  importers  of  the  goods,  and  held  themselves  out  as  having  the 
goods  as  importers,  and  in  no  otiicr  character,  yet,  because  they  had  a 
writ  of  execution  against  tiie  consignor,  if  they  dare  to  stale  on  the  re- 
cords of  a  court  of  justice,  that  they  possessed  ihcmsclves  of  thorn  by  vir- 
tue of  that  writ,  they  cannot  be  contradicted,  but  tliat  to  defeat  justice 
their  plea  must  be  taken  to  be  true,  aUhougli  negatived  by  their  conduct; 
although  shewn  to  be  false  by  the  oaths  of  some  of  those  who  pleaded  it.^ 

It  is  proper  to  take  notice  of  the  cases  that  have  been  cited  by  tlie 
counsel  for  the  defendants  below.  The  first  that  was  mentioned  was 
Crowthcr  v.  liainshollnm.  In  that  case  the  defendants  were  authoris 
rd,  by  tlie  writ  of  justices,  to  do  all  that  tlioy  wern  charged  to  have  done. 
Tliey  were  cmj)Owcred  to  attach  thf  plaintiff  l)y  his  goods,  to  compel  aii 
appearance.  They  did  no  more,  Ajrilie  jjropcily  taken  was  returned 
on  the  plaintilPs  ciitcriiigan  appearance. 

If  they  used  too  much  violence,  that  should  have  been  new-assigned  ; 
and  if  they  took  more  property  than  it  wai  necessary  for  them  to  tnkc, 
that,  as  Lord  Kenyan  says,  only  rendered  them  liable  to  an  action  on  th-j 


MO  Lucas  v.  Nockells.  E.  T.  1828. 

case  on  tlic  statute  of  Marlbriilgc,  but  did  not  make  them  trespassers. 
Lord  Kem/on  says,  "  Ifhe  can  sliew  that  he  had  a  legal  justification  for 
what  he  did,  that  is  suflicient.  xV  man  may  distrain  for  rent,  and  avow 
for  hcriot  service. "" 

In  the  case  before  us,  the  writ  does  not  justify  all  that  the  defendants 
below  have  done.  In  the  language  of  Lord  Kenyan,  it  is  not  a  legal 
justification  for  what  they  have  done  ;  on  the  contrary,  the  conduct  of 
the  defendants  below  is  so  unlike  the  conduct  required  by  the  writ,  that 
the  plaintiff  below  has  a  right  to  say,  what  was  done  could  not  be  done 
in  execution  of  the  writ. 

In  the  case  of  the  distress  mentioned  by  Lord  Kenyan,  it  is  precisely 
the  same  thing  to  the  party  distrained  on  whether  the  distress  was  for 
rent  or  heriot  service,  if  the  property  was  taken  as  a  distress,  and  treat- 
ed as  the  law  requires  that  property  so  taken  should  be  treated.  In  the 
present  case,  the  property  was  not  treated  as  it  would  have  been  if  it  had 
been  taken  under  the  writ.  The  reason  on  which  the  law  of  distress  is 
founded,  is,  that  if  the  party  has  a  right  to  do  the  act  complained  of,  he 
shall  not  be  deprived  of  the  advantage  which  the  right  gives  him  by  an 
immaterial  misdescription  of  his  right  in  the  pleadings. 

The  only  other  case  cited  is.  Dr.  Groenvelt  v.  Dr.  Burwell  and 
others,  in  12  Mod.  386,  3  Salk.  354,  and  1  Lord  Raymond,  454.  In 
that  case  the  plea  justifies  the  imprisonment,  which  was  all  that  the 
plaintiff  complained  of,  under  a  warrant  from  the  College  of  Physicians 
for  mala  praxis.  The  replication  does  not  state  any  facts  to  shew  from 
the  defendants'  conduct,  that  they  were  not  acting  under  the  warrant, 
but  merely  says,  ''that  which  they  did  was  done  of  their  own  wrong." 
This  justification,  as  it  is  said  in  the  short  report  of  the  case  in  Salkeld, 
was  merely  denying  the  legality  of  the  warrant ;  and  if  he  was  not  taken 
under  the  warrant,  but  for  some  other  cause,  he  should  have  pleaded  that 
cause  specially.  This  was  a  traverse  of  a  matter  of  law,  namely,  the 
legality  of  the  warrant,  and  not,  as  in  the  present  case,  an  allegation  that 
the  writ  was  not  used,  and  would  not  authorise  the  manner  in  which  the 
property  was  disposed  of  by  the  defendants  below.  Halt  C.  J.  says, 
*'  If  the  plaintiff  was  arrested  for  any  other  cause,  and  not  on  this  war- 
rant, then  the  plaintiff  should  have  shewn  the  other  cause."  The  plain- 
tiff below,  in  the  present  case,  has  shewn  that  the  goods  were  taken  for 
another  cause  ;  he  has  satisfactorily  proved  at  the  trial  that  they  were 
taken  for  another  cause,  and  not  under  the  writ. 

If,  according  to  the  strict  rules  of  pleading,  he  ought  to  have  shewn 
the  particular  cause  for  which  they  were  taken,  it  is  too  late  to  take  ad- 
vantage of  that  formal  defence. 

-  The  cases  on  which  the  counsel  for  the  defendants  below  relies,  are 
distinguishable  from  that  which  we  are  now  called  on  to  decide.  This 
"^vas  an  attempt  to  abuse  the  process  of  the  Court,  by  suing  it  out  for  the 
purpose  of  defeating  the  plaintiff's  claim  to  freight. 

'NVe  affirm  the  judgment  of  the  Court  below. 

Judgment  for  plaintiff  below. 


END  OF  EASTER  TERM 


REPORTS  OF  CASES 

ARGUED  AND   DETERMINED 

IN    THE 

COURT    OF    KING'S    BENCH. 


Br  RICHARD  VAUGHAN  BARNEWALL, 
OF  Lincoln's  inn, 

And  CRESSWELL  CRESSWELL, 
or  the  inner  temple,  esqs.,  barristers  at  law. 


yOL.  VIIT. 


Containing  the  Cases  of  Easter,  Trinitv,  and  Michaklmas  Terms, 
in  the  9th  Year  of  Geo.  IV.  182S. 


CASES 

ARGUED  AND  DETERMINED 

IN    THE 

COURT    OF    KING'S    BENCH, 

IN 

EASTER  TERM, 

In  the  Ninth  Year  of  the  Reign  of  George  IV.  — 1823. 


SPARKES  and  Others  v.  BELL  and  Wife.— p.  1. 

A  married  woman,  taken  in  execution  together  with  her  husband  for  a  debt  due 
from  her  before  marriage,  is  not  entitled  to  be  discharged,  unless  it  appears 
tliat  she  has  no  separate  property,  even  although  the  husband  has  been  dis- 
charged under  the  insolvent  act. 

A  rule  7iisi  had  been  obtained  to  discharge  an  order  made  by  Bayley 
J.  for  discharging  Sarah  Bell  out  of  custody,  she  having  been  taken  in 
execution,  together  with  her  hiisband,  on  a  ca.  sa.  issued  against  them, 
and  for  issuing  a  new  writ  of  ca.  sa.  against  her.  YSy  the  affidavits 
it  appeared  that  Sarah  Bell  before  her  intermarriage  with  the  other 
defendant  carried  on  the  business  of  a  baker  at  Exeter,  and  I)ecame  in- 
debted to  the  plaintiflTs  in  tlie  sum  of  100/.  and  upwards.  In  February 
1827  she  married  the  other  defendant,  having  previously  conveyed  a 
house  and  other  premises,  in  which  she  had  an  estate  for  her  own  life, 
her  furniture  and  stock  in  trade,  to  a  trustee  for  her  separate  use.  Soon 
after  the  marriage  the  plaintifls  commenced  an  action  against  the  two 
defendants  for  the  recovery  of  the  100/.  due,  and  arrested  them  both, 
whereupon  they  gave  bail.  The  husband  was  soon  al'lerwards  arrested 
for  anotiier  dcht,  and  committed  to  prison,  and  he  and  iiis  wife  suffered 
judgment  by  default  in  the  action  brought  i)y  liie  plailltif^^^,  and  afterwards 
a  ca.  sa.  was  issued,  upon  vvhicii  the  husband,  then  in  custody,  waa 
charged  in  execution,  and  Sarah  Bell  was  committed  to  the  same  prison. 
An  order  for  her  discharge  was  made  by  Bay  ley  J.,  and  the  husband  af- 
terwards obtained  his  disciiarge  as  an  insolvent  del)tor. 

The  affidavits  in  answer  did  not  deny  the  allegations  made  by  the 
plaintin's,  but  shewed  that  the  house  was  mortgaged,  not,  however,  to 
the  full  value. 

JlrchhdltL  shewed  cause  and  contended,  tiiat  the  application  io  dis- 
charge the  order  was  too  late,  the  husband  having  in  the  mean  time  oh- 
Inined  his  discharge  as  an  insolvent  debtor.  In  the  case  of  Miles  v. 
IVillinms  ct  Ux.,\  P.  VVms.  21!),  it  was  held  that  a  debt  contracted  by 
the  wife  dum  sola  was  discharged  by  the  bankruptcy  of  the  husband: 
this  case  is  precisely  analogous;  tho  debt  was  discharged  hy  the  provi- 
•ions  of  tho  insolvent  act,  and  the  wife  cannot  now  be  retaken  in  cxocu- 


144  Sparkes  I'.  Bell.  E.  T.  1828. 

tion  for  it.   She  cannot  obtain  her  discharge  under  the  insolvent  act,  Ex 
parte  Deacon,  ')  13.  &  A.  15'J. 

Merewc//ier  Serjt.  and  /'.  Kelly  contra,  were  stopped  by  the  Court. 

Bayley  J.  I  do  not  recollect  upon  what  ground  the  order  for  dis- 
charginp;  Sarah  Bell  was  made,  but  1  am  satisfied  by  the  affidavits  now 
before  the  court  that  the  order  was  improperly  made.  The  debt  in  ques- 
tion was  originally  t!:3  debt  of  the  wife,  by  i.he  marriage  it  became  the 
debt  of  the  husband  and  wife;  and  where  judgment  is  obtained  in  an  ac- 
tion for  such  a  debt,  the  rule  as  to  the  execution  is  correctly  laid  down 
in  Tidd's  Practice,  1026,  9th  edit.  "In  an  action  against  husband  and 
wife,  tlicy  may  both  be  taken  in  execution;  and  when  the  wife  is  taken  in 
execution  slie  shall  not  be  discharged  unless  it  appear  that  she  has  no 
separate  property  out  of  which  the  demand  can  be  satisfied,  or  that  there 
is  fraud  and  collusion  between  the  plaintiff  and  her  husband  to  keep  her 
in  prison. "  There  is  no  pretence  for  imputing  any  collusion  in  this  case, 
and  it  does  appear  that  the  wife  has  separate  property:  she  has  a  house, 
the  clear  rent  of  which  exceeds  by  8/.  a  year  the  interest  of  the  mort- 
gage upon  it.  I  am,  therefore,  of  opinion  that  a  new  writ  of  ca.  sa.  must 
be  issued. 

HoLROYD  and  Littledale  Js.  concurred. 

Rule  absolute  (a). 
Crt)  See  3  Wils.  124. 


WILDBOR  V.  RAINFORTH  and  Another.— p.  4. 

Wlicre  a  pauper,  who  had  been  permitted  to  occupy  a  parish  house,  went  away 
from  home:  Held,  that  the  overseers  might  lawfully  enter  and  resume  posses- 
sion, without  giving  any  notice  to  quit,  and  were  not  bound  to  pursue  the  mode 
pointed  out  by  the  59  G.  3.  c.  12.  s.  24. 


KEATES  V.  WHIELDON.— p.  7. 

A  promissory  note  for  11/.,  payable  to  A.  B.  on  demand,  is  a  promissory  note 
payable  to  bearer  on  dem  ind,  withing  the  meaning  of  the  S5  G.  3.  c.  184.,  and 
requires  a  stamp  of  two  shillings. 


RICHMOND  V.  SMITH.— p.  9. 

Where  a  traveller  went  to  an  inn,  and  desired  to  have  his  luggage  taken  into  the 
commercial  room,  to  which  he  resorted,  from  whence  it  was  stolen:  Held, 
that  the  inn-keeper  was  responsible,  although  he  proved  that  according  to  the 
usual  practice  of  his  house,  the  luggage  would  have  been  deposited  in  the  guest's 
bedroom,  and  not  in  the  commercial  room,  if  no  order  had  been  given  respect- 
ing it. 

Case  on  the  custom  of  tlie  realm  against  the  defendant,  an  inn-keeper, 
for  the  loss  of  certain  goods  which  the  ])lainti(f,  a  guest,  had  carried 
with  him  to  the  defendant's  inn.  Plen,  the  general  issue.  At  the  trial 
before  Alexander  C.  B.  at  the  last  Spring  assizes  for  Nottingham,  it  ap- 
peared that  the  plaintiff  went  by  a  stage-coach  from  London  to  the  de- 


8  BaRNEWALL  &   CllESSWELL,    9.  145 

fendant's  inn  at  Nottingham,  having  with  him  several  packages.  Some 
of  them  were  taken  up  stairs  to  his  bed-room,  but  one  package,  at  his 
desire,  was  carried  into  the  commercial  room,  into  which  he  was  sheVvn. 
It  was  the  usual  practice  at  that  inn  to  take  all  the  luggage  of  the  guests 
into  their  bed-rooms,  unless  orders  to  the  contrary  were  given.  The 
package  taken  into  the  commercial  room  contained  silks  of  various  kinds, 
and  on  the  day  after  the  plainlifl's  arrival  at  Nottingham  he  took  it  out, 
to  exhibit  his  goods  to  different  customers:  some  were  sold,  and  the 
package  was  taken  back  to  tlie  commercial  room,  from  which  it  was 
afterwards  stolen.  For  the  defendant  it  was  contended,  that  ilie  plain- 
tiff by  ordering  the  goods  to  be  taken  into  the  commercial  room  took 
them  under  his  own  protection,  and  therefore  could  not  make  the  inn- 
keeper responsible  for  the  loss.  The  Lord  Chief  Baron  told  the  Jury 
that  the  defendant  was  in  the  situation  of  a  carrier,  and  could  not  get 
rid  of  his  common-law  liability  unless  by  giving  an  express  notice;  and 
under  that  direction  they  found  a  verdict  for  the  plaintiff. 

Clarke  now  moved  for  a  new  trial,  and  contended  that  the  Lord 
Chief  Baron  mis-directed  the  jury  in  stating  that  the  defendant  could 
only  get  rid  of  his  liability  by  express  notice.  In  Burgess  v.  Cle- 
"inents,  4  M.  &.  S.  306,  it  was  held  that  a  guest  who  desired  to  have  a 
private  room,  in  which  he  placed  his  goods,  out  of  which  they  were 
stolen,  had  exonerated  the  inn-keeper.  Here  the  goods  but  for  the  plain- 
tiff's order  would  have  been  taken  to  his  bed-room,  where  in  all  proba- 
bility they  would  have  been  safe.  But  he  chose  to  have  them  in  the 
public  room;  it  is,  therefore,  but  reasonable  that  he,  and  not  the  land- 
lord, should  suffer  by  the  loss  that  ensued. 

Lord  Tenterden  C.  J.  I  am  of  opinion  that  we  ought  not  to  grant 
aTulc  on  the  ground  of  the  supposed  mis-direction  in  this  case.  It  ap- 
pears that  the  plaintiff  went  to  the  defendant's  inn  as  a  guest,  taking 
certain  goods  with  him.  It  was  the  habit  of  the  servants  of  that  inn  to 
place  the  goods  of  their  customers  in  their  bed-rooms,  but  the  plaintiff 
chose  to  have  the  package  in  question  carried  into  the  room  to  which 
travellers  in  general  resorted.  It  is  clear  that  at  common  law  when  a 
traveller  brmgs  goods  to  an  inn  the  landlord  is  responsible  for  them. 
And  if  it  had  been  intended  by  the  defendant  not  to  i)C  rcs]ionsiblc  un- 
less his  guests  chose  to  have  their  goods  placed  in  their  bed-rooms,  or 
some  other  place  selected  by  him,  he  should  have  said  so.  In  this  re- 
spect I  think  that  the  situation  of  the  landlord  was  precisely  analogous 
to  that  of  a  carrier,  and  that  the  direction  given  to  the  jury  was  right. 

BAYLEy  J.  It  appears  to  me  that  an  inn-keeper's  liability  very, 
closely  resembles  that  of  a  carrier.  He  is  prima  facie  liable  for  any  loss 
not  occasioned  by  the  act  of  God  or  the  King's  enemies  ;  although  he 
may  be  exonerated  where  the  guest  chooses  to  have  his  goods  under  his 
own  care. 

Iloi.uovn  .T.  In  the  case  o{  Bvrgrss  v.  C/fmr;?/.y  the  plaintiff  asked 
to  have  a  rooin  which  he  used  for  the  purposes  of  trade,  and  not  merely 
as  a  guest  in  the  inn.     That  was  very  difibrenl  from  the  present  case. 

Kulc  refused. (rt) 

ia)  Sec  1  Roll.  Al)r.  Anion  sm  Ca'c,  V.  pi.  5. 

VOL.   XV.  W) 


146  Penny  v.  Foy.   E.  T.  1828. 


PENNY  and  Another,  Assignees  of  R.  BUNCOMBE,  a  Bankrupt, 
V.  FOY.— p.  11. 

Where  a  defendant  pleaded,  by  way  of  set-off,  a  bond  given  to  him  by  the  plain- 
tiff, conditioned  for  payment  of  an  annuity  to  a  third  person,  which  had  been 
previously  granted  by  the  defendant,  and  that  a  certain  sum  was  in  arrear  : 
Held,  tliat  he  was  not  bound  to  prove  that  he  had  paid  the  money  in  order  to 
set  it  ofi",  but  that  on  production  of  the  bond  the  plaintiff  was  bound  to  prove 
payment. 

Debt  on  bond,  dated  the  7th  June  1817,  for  658/.,  given  by  the  de- 
fendant to  the  bankrupt  before  his  bankruptcy.  Pleas,  (after  craving 
oyer  of  the  condition  of  the  bond,  whereby  it  appeared  to  be  for  the 
payment  of  329/.  and  interest  on  the  7th  of  June  1822,)  first,  non  est 
factum.  Secondly,  that  R.  Buncombe  did  not  become  bankrupt  as 
alleged  in  the  declaration.  Thirdly,  that  before  R.  Buncombe  became 
bankrupt,  he  executed  an  assignment  of  all  his  property,  bonds,  bills, 
&c.  to  certain  persons  upon  certain  trusts,  and  that  the  trustees  accepted 
the  assignment,  whereby  the  bond  in  the  declaration  mentioned,  and  all 
R.  Buncombe's  beneficial  interest  therein,  became  vested  in  the  trus- 
tees. Fourthly,  that  at  the  time  of  the  commencement  of  the  suit  there 
was  due  to  the  plaintiffs  upon  the  bond  in  the  declaration  mentioned 
455/.  for  principal  and  interest,  and  that  before  the  said  R.  Buncombe 
became  bankrupt,  to  wit,  on  the  7th  of  June  1817,  he,  by  his  writing 
obligatory,  became  bound  to  the  defendant  in  the  penal  sum  of  300/., 
subject  to  a  condition,  whereby  (after  reciting  that  certain  premises  of 
the  defendant  were  charged  with  the  payment  of  an  annuity  of  50/.  to 
Elizabeth  Buncombe,  and  which  the  defendant  also  engaged  to  pay,  arid 
that  R.  Buncombe,  in  consideration  of  149/.  to  him  paid  by  the  defen- 
dant, had  agreed  to  pay  and  discharge  the  said  annuity  to  E.  Buncombe, 
and  to  indemnify  the  defendant  of  and  from  the  same,)  it  was  declared 
that  if  R.  Buncombe  did  well  and  truly  pay  the  said  annuity,  and  in- 
demnify defendant  from  the  same,  then  the  bond  should  be  void,  other- 
wise, &.C.  Averment,  that  after  making  the  said  last-mentioned  bond, 
to  wit,  on,  &c.  a  large  sum  of  m.oney,  to  wit,  200/.  for  and  on  account 
of  the  said  annuity,  became  and  was  due  and  in  arrear  to  the  said  E. 
Buncombe,  and  that  at  the  time  of  exhibiting  the  bill  of  the  plaintiffs 
they  were  and  still  are  indebted  to  the  defendant  in  the  sum  of  200/., 
being  the  amount  of  the  said  arrears.  And  further,  that  plaintiffs  at 
that  time  were  and  still  are  indebted  to  the  defendant  in  the  further 
sum  of  300/.  for  money  lent,  &c.  To  the  third  plea  plaintiffs  replied, 
that  the  bond  did  not  pass  to  the  trustees.  To  the  fourth,  that  they  the 
plaintiffs  were  not  indebted  as  alleged.  At  the  trial  before  Gaselee  J., 
at  the  last  Spring  assizes  for  Somerset,  the  jury  found  a  verdict  for  the 
plaintiff"  on  the  first  three  pleas.  In  support  of  the  fourth,  the  defen- 
dant produced  the  bond  set  out  in  the  plea,  but  did  not  give  any  evi- 
dence that  he  had  been  obliged  to  pay  the  annuity  to  E.  Buncombe. 
For  the  plaintiffs  it  was  contended,  that  the  defendant  could  only  set 
off"  what  he  had  paid,  and,  therefore,  in  the  absence  of  proof  of  any  pay- 
ments, the  issue  on  that  plea  must  be  found  for  the  plaintiff"s.  The 
learned  Judge  thought  that  the  plaintiff's  were  bound  to  prove  payment 
according  to  the  condition  of  the  bond,  and  directed  a  sum  of  200/.  for 
the  arrears  mentioned  in  the  plea  to  be  deducted  from  the  amount  of  the 


8  Barnewall  &  Cresswell,  11.  147 

verdict  on  the  other  issues,  but  gave  the  plaintiflf  leave  to  move  to  enter 
a  verdict  in  his  favour  on  that  issue  also. 

Wilde  Serjt.  now  moved  accordingly,  and  contended,  as  before,  that 
the  defendant  could  not  be  entitled  to  set  oft'  any  more  than  he  had  ac- 
tually paid. 

Lord  Tenterden  C.  J.  This  question^  arising  on  a  plea  of  set-off, 
must  be  treated  as  if  it  had  arisen  in  an  action  on  the  bond.  Now  that 
was  conditioned  for  payment  of  the  annuity  as  well  as  for  indemnifying 
the  defendant;  and  had  an  action  been  brought  on  this  bond  the  obligor 
would,  as  in  the  ordinary  case  of  actions  on  bonds,  have  been  bound  to 
prove  payment. 

Bayley  J.  If  the  bond  had  been  a  bond  of  indemnity  only,  the  de- 
fendant must  have  proved  actual  damage.  But  as  the  condition  was 
for  payment  of  the  annuity  the  onus  of  proving  payment  was  upon  the 
plaintiffs.  Toussaint  v.  AIarlinna?it  mid  ^^nolher,  2  T.  R.  100,  is 
an  express  authority,  that  where  a  bond  is  given  to  a  surety,  conditioned 
for  payment  of  the  money,  the  surety  may  sue  upon  it  as  soon  as  the 
condition  is  broken,  although  he  has  not  been  called  upon  to  pay. 

Rule  refused. 


MAUGHAM  V.  HUBBARD  and  ROBINSON,  Assignees  of  LAN- 
CASTER, a  Bankrupt.— p.  14. 

A  witness  called  to  prove  the  receipt  of  a  sum  of  money,  was  shewn  an  acknow- 
ledgment of  the  receipt  of  such  money  signed  by  himself;  and  on  seeing  it 
said  that  he  had  no  doubt  he  had  received  it,  although  he  had  no  recollection 
of  the  fact :  Held,  that  this  was  sufficient  parol  evidence  of  the  payment  of  the 
money,  and  that  the  written  acknowledgment  having  been  used  to  refresh  the 
memory  of  the  witness,  and  not  as  evidence  of  the  payment,  did  not  require 
any  stamp. 


Hr!:NLEY  v.  SOPER  the  Elder.— p.  IG. 

Debt  lies  on  the  decree  of  a  colonial  court  made  for  i^aynient  of  the  I)alunce  due 
on  a  partnership  account.  One  of  the  jjartncrs  gave  liissou  a  jjower  of  attor- 
ney "to  act  on  liis  behalf  in  dissolving  the  partncrsliij),  with  authority  to  ap- 
point any  otlier  person  as  he  might  see  fit :"  Held,  tliat  this  gave  the  son  power 
to  submit  tlie  accounts  to  arliitration. 

Dkbt  on  a  judgment  of  l!io  supremo  court  of  judicature  in  Newfound- 
land, whereby  the  jjlaintiff  recovered  a  del)t  of  <iOS/.  2d.,  with  costs  of 
suit,  which  were  taxed  at  Sfi/.  f).s.  lid.  Count  for  interest.  Pica,  nil 
debet.  At  the  trial  before  Gaselee  J.  at  tiic  last  Spring  assizes  for  De- 
vonshire, the  proceedings  of  the  supreme  court  were  given  in  evidence, 
whereby  it  appeared  tliat  on  the  -Ith  of  June  1825  the  present  plaintiff 
presented  a  petition  to  lliat  court,  stating  that  he  and  defendant  entered 
into  certain  partncrsliip  trans;iction.H  in  ISIS;  that  in  1S'-21  the  defen- 
dant pro[)Osed  that  they  shouM  close  their  concerns,  to  wliich  plaintiff 
assented;  that  plaintiff  had  been  unal)le  lo  obtain  an  accoimt  of  the  af- 
fairs of  the  partnership,  and  therefore  prayed  that  the  court  would  order 
him  to  be  turnished  with  a  true  statement  of  the  accounts.  Upon  this 
petition  an  order  was  made  that  the  defendant  should  appear  in  court  on 
the  6th  of  June  to  answer  such  cpieslions  as  might  be  put  to  him  touch- 


14S  Uenlly  v.  Sopek.  E.  T.  1828. 

ing  the  ni'itlcis  set  forth  in  tliu  petition.  On  Ihc  13th  of  June,  Joseph 
Sopcr,  junior,  as  the  attorney  of  his  father,  J.  Sopcr,  senior,  appeared 
in  court,  and  stated  that  he  had  it  not  in  his  power  to  answer;  in  eon- 
scquoncc.  of  wliich  the  cause  was  ordered  to  stand  over  until  Novemher 
then  ne\t,  to  allow  dcfenilant  time  to  produce  a  statement  of  tiic  part- 
nership accounts.  On  the  0th  of  Dccenibcr  1S25,  thcplaintifl  in  his  own 
propci  person,  and  the  defendant  by  his  attorney,  J.  Soper,  junior, 
prayetl  the  court  that  all  matters  in  difference  between  them  might  be 
submitted  to  the  arbitration  of  A.  B.  and  C.  D. ;  that  the  court  would 
be  pleased  to  appoint  an  umpire,  and  that  the  award  of  the  arbitrators, 
signed  and  delivered  into  court,  might  be  made  a  rule  of  the  supreme 
court,  and  he  considered  final  and  binding  on  them,  plaintifl'  and  defen- 
dant. To  which  prayer  the  court  assented,  and  P.  M.  Esq.  was  by  the 
court  appointed  umpire.  On  the  25th  of  January  1S26  an  award  was 
made,  and  on  the  12th  of  July  1826  this  award  was  set  aside  by  the  su- 
preme court,  and  the  arbitrators  were  authorized  to  enter  into  a  new  in- 
vestigation of  the  accounts  between  the  parties,  upon  JNIr.  Soper's  pay- 
ing all  the  costs  already  incurred  in  the  proceeding.  On  the  16th  of 
July  the  arbitrators  made  a  second  award-,  and  thereby  found  that  Soper 
Avas  indebted  to  Henley  in  the  sum  of  GOSL  2d.,  and  for  the  amount  of 
this  award  the  supreme  court  gave  judgment  for  the  plaintiff  on  the  31st 
of  July  1S26,  and  on  the  5th  of  July  1S27  the  court  taxed  and  allowed 
the  plaintifl's  costs  at  5GL  Os.  lid.  In  order  to  prove  the  authority  of 
J.  Soper,  junior,  to  appear  and  act  as  agent  for  his  father  in  the  supremo 
court,  a  letter  was  given  in  evidence  written  by  the  defendant  to  the 
plaintiff  on  the  9th  of  April  1821,  wherein  he  stated  that  he  was  deter- 
mined on  dissolving  his  connection  with  the  plaintiff,  and  in  order  to  fa- 
cilitate that  object,  had  given  his  son  a  power  of  attorney  to  act  on  his 
behalf,  with  authority  to  ajipoint  any  other  person  as  he  might  see  fit. 
And  also  a  petition  from  the  defendant  to  the  supreme  court,  dated  the 
30th  November  1825,  praying  for  further  time  to  produce  his  accounts 
before  the  arbitrators.  For  the  defendant  it  was  contended  that  the  j)ro- 
ceeding  in  the  supreme  court  was  in  the  nature  of  a  bill  in  equity  for 
an  account  of  partnership  transactions,  and  that  the  money  awarded  was 
for  a  demand  which  could  not  be  sued  for  in  the  courts  of  law  in  this 
country,  therefore  no  action  was  maintainable  on  the  judgment  ;  se- 
condly, that  the  authority  given  to  the  defendant's  son  did  not  warrant 
a  submission  to  arbitration;  and,  thirdly,  that  the  second  reference  did 
liOi  appear  to  be  made  with  the  assent  even  of  Sopci-,  junior.  The  learn- 
ed Judge  directed  the  jury  to  find  for  the  plaintifl"  for  the  amount  of  the 
foreign  judgment,  together  witli  tiie  taxed  costs  and  interest,  and  gave 
the  defendant  leave  to  move  to  enter  a  nonsuit. 

H'ilde  Serjt.  now  moved  accordingly,  and  cited  Carpenter  v. 
Thornton,  3  B.  &  A.  52;  Sadler  v.  Robina,  1  Campb.  253;  Fhillips 
V.  Hunter,  2  H.  Bl.  410;   Walker  v.   Witter,  1  Doug.  1. 

Lord  Tentekden  C.  J.  I  am  of  opinion  that  llie  verdict  in  this  case 
•was  right.  The  action  was  founded  on  a  decree  of  a  colonial  court  which 
in  substance  fixed  the  amount  of  a  balance  due  from  one  of  two  partners 
to  tlie  t)thcr.  There  is  a  great  difference  between  the  decree  of  a 
colonial  court  and  of  a  court  of  equity  in  this  country.  The  colonial 
court  cannot  enforce  its  decrees  here,  a  court  of  equity  in  this  country 
may;  and,  therefore,  in  the  latter  case  there  is  no  occasion  for  the  in- 
terference of  a  court  of  law,  in  the  former  there  is,  to  prevent  a  failure 


8  Barnewall  &  Cresswell,  16.  149 

of  justice.  There  is  another  difference,  also:  in  considering  the  pro- 
ceedings of  a  colonial  court  we  must  look  at  the  substance  and  not  ai  the 
form,  according  to  the  rule  adopted  by  the  privy  council.  If  we,  sit- 
ting in  England,  were  to  require  in  the  proceedings  of  foreign  courts  all 
the  accuracy  for  which  we  look  in  our  own,  hardly  any  of  their  judg- 
ments could  stand.  With  respect  to  Carpenter  v.  Thornton,  I  tlfink 
it  does  not  establish  the  broad  principle  for  which  it  was  cited.  It  ap- 
pears by  the  report  that  I  then  expressed  myself  with  much  caution,  and 
I  do  not  find  that  I  ever  said  that  a  decree  of  a  court  of  equity,  fixing 
the  balance  due  on  a  partnership  account,  could  not  be  enforced  in  a 
courtof  law,  unless  the  items  of  the  account  could  be  sued  for.  My 
judgment  proceeded  on  the  particular  circumstances  of  that  case:  the  bill 
was  for  the  specific  performance  of  an  agreement,  which  is  a  matter  en- 
tirely of  equitable  jurisdiction.  But  it  is  a  general  rule,  that  if  a  part- 
nership account  be  settled,  and  a  balance  struck  by  due  authority,  that 
balance  may  be  recovered  in  an  action  at  law.  In  the  present  case,  the 
first  step  appears  to  have  been  taken  by  the  plaintiff  to  procure  an  ad- 
justment of  the  partnership  accounts.  The  defendant's  son,  acting  un- 
der a  power  of  attorney,  appeared  for  his  father,  who  was  thereby  made 
virtually  a  party  to  the  suit.  Then  the  accounts  were  referred  to  arbi- 
tration. The  first  award  made  by  the  arbitrators  was  certainly  by  the. 
authority  of  the  defendant,  but  that  award  was  disturbed;  and  it  is  said 
that  neither  the  defendant  nor  any  person  on  his  behalf  consented  to  the 
second  reference.  But  looking  at  the  substance  of  the  proceedings,  and 
considering  that  the  second  reference  took  place  upon  the  defendant's 
paying  the  costs  of  the  first,  we  must  presume  that  it  was  made  at  his 
instance.  Then  we  find  the  balance  of  a  partnership  account  duly  ascer- 
tained, and  a  decree  made  for  payment  of  it;  and  I  think  a  promise  to 
pay  the  debt  ascertained  by  that  decree  may  and  ought  to  be  presumed. 
If  so,  there  is  no  fault  to  be  found  with  the  verdict  in  this  case.  In 
the  case  of  Sadler  v.  Robins,  \.\\q.  sum  due  on  the  decree  was  left  indefi- 
nite, the  costs  which  were  to  be  deducted  never  having  been  taxed;  but 
Lord  Ellc7ihnrough  said,  that  had  the  decree  been  perfected  he  would 
have  given  effect  to  it  as  well  as  to  a  judgment  at  common  law. 

Bavley  J.  I  am  of  the  same  opinion:  and  it  appears  to  me  that  the 
case  of  Carpenter  v.  Thornton  docs  not  militate  against  our  present  de- 
cision, for  there  the  only  ol)ligation  on  the  defendant  was  to  pay 
sometliing  awarded  on  eriuitable  princij)lcs.  But  an  action  at  law  is 
always  maintainable  for  the  balance  of  a  partnership  account  duly  ascer- 
tained; and  it  cannot  make  any  did'crence  that  the  balance  in  the  j)resent 
case  was  settled  by  the  Court  instead  of  i)y  the  jjarlics  iheuisulvesout  of 
Court.  Then  it  is  said  that  Soper's  son  had  no  authority  to  subniit  the 
accounts  to  arbitration;  but  I  think  he  had  such  power,  and  that  we  must 
presume  his  assent  to  the  second  reference,  inasmuch  as  it  was  ordered 
uj)on  payment  of  costs  by  him. 

JfoMJovn  .T.  But  for  the  case  before  Lord  Ellen  boron  i(h  I  shoy\\d 
Iiavc  entertained  some  doubts  upon  the  present  question.  That,  liovv- 
ever,  is  an  authority  in  favour  of  an  action  upon  the  decree  of  a  foreign 
court  of  equity  if  duly  perfected.     Here  the  decree  was  |)erfecled. 

LiTTLEHALK  .1.  I  am  entirely  of  the  same  opinion  as  to  the  sum  de- 
creed to  be  ])aid  as  the  balance  of  the  jiartncrship  account,  nor  do  I  see 
any  objection  to  the  demand  of  the  other  two  sums  for  costs  and  interest 

Kulc  refused. 


150  Doe  d.  Oldham  v.  Wolley.  E.  T.  1828. 


DOE  on  the  demise  of  OLDHAM  and  Wife  v.  WOLLEY.— p.  22. 

A  will  more  than  thirty  years  old  may  be  read  in  evidence,  without  proof  of  its 
execution,  although  the  testator  has  died  within  thirty  years,  and  some  of  the 
subscribing  witnesses  arc  proved  to  be  still  living.  After  the  lapse  of  a  period 
of  more  than  100  years:  Held,  also,  that  in  the  absence  of  evidence  to  the  con- 
trary, the  death  of  a  party  without  issue  might  be  presumed. 

Ejectment  for  lands  in  Worcestershire.  Pica,  the  general  issue. 
At  tlie  trial  before  fimghanh.fai  the  last  Spring  assizes  for  Worcester, 
it  appeared  that  the  lessors  of  the  plaintiff  claimed  as  devisees  of 
Frances  Wolley,  who  was  said  to  be  heir  of  T.  Wolley,  who  died  in 
ISOO,  seised  of  the  estate  in  question,  having  devised  it  to  his  widow  for 
life,  remainder  to  his  right  heirs.  This  will  was  dated  the  21st  Feb- 
ruary 1798,  more  than  thirty  years  before  the  trial,  but  one  of  the 
subscribing  witnesses  was  proved  to  be  still  living;  and  it  was  insisted 
for  the  defendant  that  he  must  be  called  to  prove  the  execution  of  the  will, 
as  the  testator  had  died  within  thirty  years.  The  learned  Judge  thought 
that  the  thirty  years  must  be  computed  from  the  date  of  the  will,  and 
over-ruled  the  objection.  In  order  to  prove  that  Frances  Wolley  was 
heir  of  T.  Wolley  the  testator,  a  deed  was  produced,  being  a  settlement 
made  in  1GS9,  on  the  marriage  of  Thomas  Wolley,  the  grandfather  of 
T.  Wolley  the  testator;  by  which  it  appeared  that  he  had  several  brothers, 
of  whom  Edward,  the  grandfather  of  Frances  Wolley,  was  the  youngest. 
No  evidence  was  given  to  shew  what  had  become  of  the  other  brothers, 
or  that  they  died  without  issue.  IJut  wills  of  some  members  of 
the  family,  made  after  the  date  of  the  marriage-settlement,  were  pro- 
duced, and  they  did  not  mention  any  brothers,  except  the  grandfather  of 
T.  Wolley,  the  testator,  and  the  grandfather  of  Frances  Wolley.  The 
learned  Judge  said  that,  in  the  absence  of  any  evidence  to  the  contrary, 
the  jury  might  presume  that  they  died  without  issue,  and  the  jury  found 
a  verdict  for  the  plaintifl'. 

Campbell  now  moved  for  a  new  trial  on  two  grounds;  first,  that  the 
will  of  T.  Wolley  was  improperly  received  in  evidence,  for  that  the 
plaintiff  should  have  called  the  existing  subscribing  witness  to  prove  the 
due  execution  of  it,  and  cited  ]\PKenire  v.  Fraser,  9  Ves.  5.  Secondly, 
the  learned  Judge  ought  not  to  have  allowed  the  jury  to  presume  that 
the  elder  brothers  of  Frances  Wolley's  grandfather  died  without  issue. 
Doe  V.  Griffin,  15  East,  293. 

Lord  Tenterden  C.  J.  As  to  the  first  point  I  am  of  opinion  that 
the  rule  of  computing  the  thirty  years  from  the  date  of  a  deed  is  equally 
applicable  to  a  will.  The  principle  upon  which  deeds  after  that  period 
are  received  in  evidence,  witiiout  proof  of  the  execution,  is,  that  the 
witnesses  may  be  presumed  to  have  died.  But  it  was  urged  that  when 
the  existence  of  an  attesting  witness  is  proved,  he  must  be  called.  That, 
however,  would  only  be  a  trap  for  a  nonsuit.  The  party  producing  the 
will  might  know  nothing  of  the  existence  of  the  witness  until  the  time  of 
the  trial.  The  defendant  might  have  ascertained  it,  and  kept  his  know- 
ledge a  secret  up  to  that  time,  in  order  to  defeat  the  claimant.  As  to 
the  other  point  it  must  at  all  events  be  admitted,  that  the  death  of  the 
grandfather's  brothers  might  be  presumed,  and  then,  in  order  to  raise 
ibe  objection,  two  affirmatives  must  be  presumed:  viz.  that  they  did 
marry,  and  did  leave  issue.  I  think  that  would  be  very  unreasonable, 
and  that  the  direction  of  the  learned  Judge  was  right. 

Rule  refused. 


8  Barnewall  &  Cresswell,  25.  151 

DOE  on  the  demise  of  the  Honourable  HENRY  WATSON,  Clerk, 
V.  B.  W.  FLETCHER,  Clerk.— p.  25. 

Where  a  party  was  presented  to  a  rectory  in  consideration  of  his  having  given  a 
bond  to  resign  in  favour  of  a  particular  person,  at  tlie  request  of  the  patron,  and 
was  instituted  and  inducted,  and  such  bond  was  held  to  be  void,  on  the  ground 
that  it  was  simoniacal,  and  the  king  then  presented  A.  B  ,  and  he  was  institu- 
ted and  inducted :  Held,  that  he  might  maintain  ejectment  for  the  rectory 
against  the  person  who  had  been  simoniacally  presented. 


The  KING  V.  The  Inhabitants  of  ASHLEY  HAY.— p.  27. 

Since  the  statute  6  G.  4.  c.  57,  in  order  to  gain  a  settlement  by  settling  upon  a 
tenement,  the  reserved  rent  for  one  whole  year  (whatever  be  its  amount)  must 
be  paid. 


The  KING  v.  The  Inhabitants  of  BIRMINGHAM.— p.  29. 

Where  a  marriage  was  solemnized  by  license  between  a  man  and  woman,  the 
former  being  a  minor,  whose  father  was  living,  and  who  did  not  consent  to  the 
marriage  :  Held  that  it  was  nevertheless  valid,  the  4  G.  4.  c.  75.  s.  16.,  which 
requires  such  consent,  being  directory  only. 

Where  the  marriage  of  a  female  pauper  is  brought  about  by  the  fraud  of  parish 
officers,  that  does  not  prevent  her  from  acquiring  a  settlement  by  the  marriage 
in  the  husband's  parish. 


R.  B.  BURLEIGH  and  Others,  Executors  and  Executrix  of  ROBERT 
BURLEIGH,  deceased,  v.  E.  STOTT,  Administratrix  of  T.  STOTT, 
deceased. — p.  3G. 

To  an  action  upon  a  joint  and  several  promissory  note  of  A.  and  B. ,  the  latter  being 
a  mere  surety,  Ijrought  l)y  payee  against  the  administrator  of  B. ,  the  defend- 
ant pleaded  tliat  the  cause  of  action  did  not  accrue  within  six  years,  uijon  which 
the  i)laiiitiff  took  issue.  The  ])laintin"i>r()ved,  tluii  witliin  six  years,  and  during 
the  lifetime  of  B.,  A.  made  a  ])ayment  on  account  of  tlie  note.  B.  afterwards 
died:  Held,  that  such  payment  operated  as  a  new  ])romise  bv  B.  to  pay,  ac- 
cording to  the  nature  of  tlic  instrument,  and  that  his  administrator  was  liable 
on  the  note. 

Assumpsit  on  a  promissory  note  made  by  T.  Stolt,  the  intrsfate, 
dated  4lh  March  ISiy,  for  GOO/.,  payable  to  Robert  liurlcic;h,  willi  inter- 
est. Common  money  counts.  Plea,  first,  the  general  issue,  upon  which 
issue  was  joined;  secondly,  the  statute  of  limitations.  Tho.  plaintifls 
replied,  a  writ  issued  on  the  3d  of  October  1826,  by  the  plaintifTs  as 
executors  at^ninst  the  defendant  as  administratrix.  Rejoinder,  admitting 
the  writ,  but  alleging!;  that  the  caus(;s  of  action  did  not  accrue  within  six 
years  of  the  issuing;  of  the  same,  uj)on  which  issue  was  joined.  At  the 
trial  before  Lonl  Tentcrdm  C.  J.,  at  the  London  siltinjrs  lieforc*  Michael- 
mas term  1S27,  a  verdict  was  found  for  the  pl.iinlilfs  for  fi2.5/. ,  subject 
to  the  opinion  of  this  Court  on  the  followinp;  case:  On  the  4lh  March 
ISIS,  Thomas  Burleigh  and  Thomas  Slott  signed  the  following  promis- 
sory note: 


152  UunLEicii  V.  Stott.  E.  T.  1828. 

*»  £600  London,  4th  Mnroli  ISIS. 

"On  (Icmanil  wo  jointly  .ind  scvnrally  promise  lo  pay  Mr.  Robert 
Burleigh  the  sum  of  six  huiulrccl  pounds,  with  lawful  interest  thereon.'* 

The  note  was  given  by  T.  Burleigh  to  Roljcrt  Burleigh  for  money 
lent,  and  T.  Stott  was  merely  a  surety.  On  the  10th  October  1S18  T. 
lUirlcigh  paid  to  Robert  Burleigh  the  interest  then  due  on  the  note, 
i;ul  the  iollowing  intlorscment  was  thereupon  made  upon  it  by  Robert 
iV.irlcigh:  "  Received  the  interest  on  this  note  to  tlie  lOth  October  1818. 
[I.  Hiirieigh."  On  the  lOlh  October  1820  T.  Burleigh  paid  to  Robert 
Burleigh  the  interest  then  due  on  the  note,  and  100/.  on  account  of  the 
l)rincii)al,  and  thereupon  the  following  indorsement  was  at  the  same  time 
made  upon  the  note  by  Robert  Burleigh:  ''  Received  the  interest  on  this 
note  to  the  10th  October  1820;  also  100/.  on  account  of  the  principal, 
leaving  due  500/.  R.  Burleigh."  From  his  signing  the  note  till  his 
death  T.  Stott  had  no  communication  with  Thomas  Burleigh  about  the 
note.  Robert  Burleigh  always  applied  to  Thomas  Burleigh  for  money. 
Tlic  payments  on  the  10th  October  1818,  and  10th  October  1820,  were 
inadc  by  Thomas  Burleigh,  without  any  communication  with  T.  Stott. 
T.  Stott  died  on  the  3d  March  1821,  and  Robert  Burleigh  died  on  the 
Sth  July  m  that  year.  The  writ  of  latitat  in  this  cause  was  duly  issued 
on  the  3d  October  1S26.  The  question  for  the  opinion  of  this  Court 
was,  Whether  the  plaintiffs,  under  these  circumstances,  were  entitled  to 
recover? 

Chili]!/,  for  the  plaintiff,  contended  that  the  part-payment  of  the  money 
secured  by  the  note  within  six  years  by  Burleigh  operated  as  a  fresh 
promise  by  Stott  to  pay  the  residue,  citing  IVood  v.  Braddick,  1  Taunt. 
101;  IVhitcomhv.  IVhifing,  Doug.  G52;  Perhamv.  Raynal,2  Bingh. 
306;  Atkins  v.  Trcdgold,  2  B.  &  C.  23. 

Alderson  contra, referred  to  Pitlamv.  Foster,  1  B.  &  C.  248;  Brand 
V.  Ilasleri.g,  Boug.  652;  Jackson  v.  Fairbank,  2  H.  BI.  340j  Bran- 
dram  V.  JVharlon,  1  B.  &  A.  463. 

Lord  Tenteuden  C.  J,  lam  of  opinion  that  the  plaintiffs  are  entitled 
to  recover.  I  quite  agree  with  the  late  decisions  which  have  established, 
that  in  order  to  satisfy  the  statute  of  limitations  there  must  be  evidence 
of  a  promise  to  pay  within  the  six  years.  ]3ut  I  think  that  in  this  case 
there  was  sufficient  evidence  of  a  promise  by  the  intestate  within  six  ^ 
years  to  pay  jointly  and  severally  according  to  the  form  of  this  note. 
Suppose  the  note  had  been  joint  only,  there  could  not  have  been  any 
doubt  that  a  part-payment  by  one  of  the  joint  promisors  would  refer  to 
the  nature  of  the  note,  and  operate  as  an  admission  by  all  the  joint  pro- 
misors that  the  note  was  unsatisfied,  and  therefore  as  a  promise  by  all  to 
pay  the  residue.  Here  the  note  is  joint  and  several,  and  the  plaintiffs 
are  bound  to  sue  as  if  it  was  the  several  note  of  the  intestate,  because 
Stott,  one  of  the  joint  promisors,  is  dead.  It  is  said  that  it  must  be  con- 
sidered as  if  there  were  three  notes,  one  joint  and  two  several  notes,  and 
that  the  payment  by  one  only  operates  as  an  admission  so  far  only  as  the 
joint  promise  is  concerned,  ^nd  no  further,  and,  consequently,  that  the 
joint  promise  being  at  an  end  by  the  death  of  one  of  the  copromisors,  the 
action  is  not  maintainable.  If  we  were  so  to  hold,  I  think  we  should  put 
the  law  on  too  nice  a  distinction.  I  am  of  opinion,  that  a  part-payment 
by  one  is  an  admission  by  both  that  the  note  is  unsatisfied,  and  that  it 
operates  as  a  promise  by  both  to  pay  according  to  the  nature  of  the  in- 
strument, and;  consequently,  as  a  promise  I)y  the  defendant's  intestate 


8  Barnewall  &  Cresswell.  36.  153 

to  pay  on  this  his  several  promissory  note.     The  judgment  of  the  Court 
must,  therefore,  be  for  the  plaintiff. 

Batlev  J.  I  consider  this  as  a  joint  and  several  promissory  note. 
I  think  that  the  part-payment  by  one  operates  in  point  of  legal  effect  as 
a  new  promise,  by  all  and  each  of  the  promisors,  to  pay  according  to  the 
nature  of  the  instrument. 

HoLROYD  J.  IVhitcomb  v.  Whiting,  Doug.  652,  and  Jackson  v. 
Fairbank,  2  H.  Black,  340,  are  in  point,  and  must  govern  the  present 
case.  It  is  conceded  that  part-payment  by  one  of  two  joint  promisors 
within  the  six  years  being  an  admission  that  the  note  is  unsatisfied,  ope- 
rates as  a  promise  by  both  to  pay  the  joint  note.  I  also  think  that  such 
payment  operates  as  a  new  promise  to  the  full  extent  of  the  original  pro- 
mise contained  in  the  instrument.  The  joint  and  several  promises  apply 
to  the  same  sum  of  money.  It  was  a  joint  debt,  though  there  was  a 
several  promise  by  each  to  pay  it.  In  the  case  of  a  joint  and  several 
bond  payment  by  one  operates  as  payment  by  all.  (See  Bac.  Abr.  tit.  Ob- 
ligation, D  4.)  So  a  release  to  one  is  a  release  to  all.  In  this  case  Stott 
has  had  the  benefit  of  the  part-payment,  and  he  ought  to  bear  the  burden. 
It  seems  to  me  that  where  two  persons  jointly  and  severally  promise  to 
pay  one  and  the  same  sum  of  money,  each  of  them  makes  the  other  hia 
agent  for  the  purpose  of  making  any  payment  in  respect  of  that  sum  of 
money.  That  being  so,  then,  Burleigh  made  the  payment  in  question 
as  the  agent  and  by  the  authority  of  Stott.  It  was,  therefore,  an  admis- 
sion by  the  latter  that  the  sum  remaining  due  on  the  note  was  an  exist- 
ing debt,  and  it  operated  as  a  fresh  promise  by  him  to  pay  the  same. 

Judgment  for  the  plaintiffs. 


The  DOCK  COMPANY  afKINGSTON-UPON-HULL  v.  LA 
MARCHE.— p.  42. 

By  an  act  of  parliament,  certain  persons  were  incorporated  as  the  Hull  Dock 
Company,  and  premises  (before  tlie  property  of  the  crown)  were  given  to  them 
for  the  piuposps  of  the  act,  and  tliey  were  .luthorised  to  make  a  dock,  quays, 
wharfs,  &c.  which,  it  was  enacted,  should  be  vested  in  them  for  the  purposes 
of  the  act.  Anjongst  other  things,  it  was  provided,  that  "all  goods,  i'vc.  which 
should  be  landed  or  discharged  upon  any  of  the  quays  or  wharfs  which  should 
be  erected  by  virtue  of  tlint  act,  shoidd  l)e  liable  to  pay,  and  should  be  charged 
and  chargeable  witii  the  like  rates  of  wharfage  and  ])ayments  as  were  usually 
taken  or  received  for  any  goods,  6vc.  loiidcd  or  discliarged  upon  any  quays  or 
wharfs  in  the  port  of  London."  Held,  that  as  the  premises  were  only  vested 
in  the  Company  for  the  purposes  of  the  art,  they  had  no  common-law  right  to  a 
rompensation  for  the  use  of  tliem,  and  that  the  statute  did  not  give  them  any 
right  to  claim  wharfage  for  goods  ship])ed  off  from  their  quays. 


The  KING  v.  The  LONDON  GAS-LIGHT  and  COKE  COM- 
PANY.—p.  54. 

The  7  G.  .1.  c.  ."7.  vhich  enacts,  that  certain  lands  to  be  embanked  from  the  river 
Thames  shall  be  "  free  from  all  taxes  and  assessments  whatsoever,"  exempts 
the  occupiers  of  premises  built  on  those  lands  from  payment  of  poor-rates  in 
respect  of  such  occupation. 
VOL.    XV.  20 


154  Donne  v.  Mautyr.  E.  T.  1828. 

DONNE  V.  MARTYR.— p.  63. 

A  local  act  for  enlarging,  cleansing,  paving,  and  lighting  the  streets,  &c.  in  the 
city  of  London,  authorized  the  commissioners  to  order  a  rate  in  the  several 
•wards  of  the  city  of  London  to  be  made  by  tlie  aldermen  and  the  major  part  of 
the  common  councilmcn,  upon  all  persons  who  inhabited,  held,  occupied,  pos- 
sessed, or  enjoyed  any  land,  house,  shop,  warehouse,  8cc.  or  other  tenement  or 
hereditament  within  the  said  several  wards,  and  who  by  the  laws  then  in  being 
should  be  liable  to  be  rated  to  the  relief  of  the  poor.  By  another  clause,  it  was 
made  lawful  for  the  alderman  and  the  major  part  of  the  common  councilmen  of 
each  ward,  at  a  court  of  wardmote  to  be  holden  for  the  choice  of  ward  officers, 
to  return  to  the  wardmote  the  names  and  places  of  abode  of  a  competent  num- 
ber of  substantial  inhabitants  of  such  ward,  of  whom  so  many  as  the  alderman, 
&c.  should  think  fit  and  dii-ect,  not  exceeding  half  the  number  of  persons  sore- 
turned,  should  be  chosen  at  the  said  wardmote  to  be  collectors  of  the  said  rates 
and  assessments  for  one  year :  Held,  that  the  word  inhal)itant,  in  the  latter 
clause,  meant  resiant,  and,  therefore,  that  one  of  the  several  pai'tnersin  a  com- 
mercial establishment,  who  occupied  a  house  for  the  purpose  of  his  business  in 
the  ward,  but  who  resided  elsewhere,  was  not  liable  to  serve  the  office  of  col- 
lector of  the  rates. 


DOE  dem.  LAWRIE  and  Another  v.  DYEBALL.— p.  70. 

Ejectment  for  a  messuage  and  tenement.     Judgment  entered  up  generally  for  the 
plaintiff:  Held,  no  ground  for  reversal  on  error. 

Error  to  reverse  a  judgment  for  the  plaintiflf  in  ejectment,  which  was 
brought  for  a  messuage  and  tenement. 

ChiltT/,  for  the  plaintiff  in  error,  contended,  that  as  ejectment  does 
not  lie  for  a  tenement  eo  nomine,  the  judgment  was  erroneous,  the 
damages  not  being  now  severable  ;  and  he  cited  Goodtitle  v.  Otway,  8 
East,  357,  where  a  motion  having  been  made  in  arrest  of  judgment  upon 
a  similar  ground,  the  difficulty  was  obviated  by  entering  up  judgment 
for  the  messuage  only. 

Per  Curiam.  It  is  a  settled  rule  that  if  the  same  count  contains  two 
demands  or  complaints,  for  one  of  which  the  action  lies,  and  not  for  the 
other,  all  the  damages  shall  be  referred  to  the  good  cause  of  action,  al- 
though it  would  be  otherwise  if  they  were  in  separate  counts.  That  be- 
ing so,  there  is  no  ground  for  reversing  the  judgment  in  question. 

Brodrick  for  the  defendant  in  error.  Judgment  affirmed. 


The  KING  v.  The  Inhabitants  of  GREAT  BOLTON.— p.  7L 

Tlie  59  G.  3.  c.  50.  requires,  inter  alia,  that  in  order  to  acquire  a  settlement  by  the 
renting  of  a  tenement,  it  shall  consist  of  a  separate  and  distinct  dwelling-house 
or  building,  or  of  land,  or  of  both,  Ijona  fide  hired  at  and  for  10/.  a  year  at  the 
least,  for  the  term  of  one  whole  year,  and  that  such  house  or  building  shall  be 
held,  and  the  land  occupied,  for  the  term  of  one  whole  year:  Held,  that  a  set- 
tlement was  gained  under  this  statute  by  a  pauper  hiring  and  holding  for  one 
year  a  distinct  and  separate  dwelling-house,  although  part  of  the  house  was  let 
to  an  undertenant. 


The  KING  V.  The  Inhabitants  of  GREAT  SHEEPY  in  the  County 
of  LEICESTER.— p.  74. 

The  parish  officers  of  A,  bound  a  pauper  apprentice  to  his  grandfather,  who  was 
described  as  a  butcher.     Indentures  were  executed  with  the  sanction  of  two 


8  Barnewall  &  Cresswell,  78.  155 

justices.  The  grandfather  in  fact  did  not  carry  on  the  trade  of  a  butcher,  but 
he  and  the  mother  colluded  together,  and  fraudulently  imposed  him  on  the 
justices  and  the  parish  officers  as  a  proper  master  for  the  pauper:  Held,  that 
there  having  been  no  fraud  in  the  parish  officers,  the  pauper  gained  a  settle- 
ment by  serving  under  this  hidenture. 


The  KING  v.  The  Inhabitants  of  MAULDEN.— p.  78. 

An  order  of  justices  made  under  the  5  G.  4.  c.  71.  stated,  "that  the  justices,  after 
due  examination  had  on  oath,  having  adjudged  the  legal  place  of  settlement  of 
a  pauper  lunatic,  confined  in  a  lunatic  asylum,  to  be  in  M.,  did  thereby  require 
the  churchwardens  and  overseers  of  M.  to  pay  to  the  treasurer  of  the  lunatic 
asylum  10/.  16s.  due  for  twenty-four  weeks'  maintenance,  &c.  being  at  the  rate 
of  9s.  per  week,  and  to  pay  the  same  weekly  sum  during  so  long  a  time  as  the 
pauper  should  remain  therein."  The  parish  of  M.  appealed  against  this  order, 
and  in  their  notice  of  appeal  described  it  as  an  order  of  settlement  and  mainte- 
nance: Held,  that  as  the  parish  of  M.  had  treated  this  as  the  order  of  settle- 
ment, it  must  be  presumed  that  there  was  no  other  order,  and,  therefore,  the 
•wrords,  "having  adjudged,"  nuist  be  understood  as  woi-ds  of  present  adjudica- 
tion, and  that  the  order  was  good  in  this  respect:  Held,  secondly,  that  so  muck 
of  the  order  as  was  retrospective  was  bad,  but  that  it  was  good  for  the  residue. 


The  KING  v.  The  Inhabitants  of  COMBE.— p.  S2. 

The  father  of  a  pauper  was  about  to  put  him  out  to  service,  when  it  was  suggested 
to  him  by  A.,  a  carpenter,  that  it  would  be  better  for  the  pauper  to  learn  his 
(A.'s)  trade,  instead  of  going  to  service;  and  A.  afterwards  hired  the  pauper  to 
learn  his  trade,  and  to  do  any  other  work,  as  well  as  that  of  a  carpenter.  The 
pauper  went  to  A.  and  served  him  for  five  years,  living  during  that  time  with 
his  parents,  who  provided  him  with  victuals  and  part  of  his  clothing,  the  re- 
mainder being  provided  Ijy  A.  The  pauper  did  any  work  his  master  ordered 
him  to  do,  and  at  the  end  ef  that  time  he  agreed  to  work  for  the  master  as  a 
journeyman  at  weekly  wages.  'ITie  ^ssions  having  found  that  tliis  was  a  de- 
fective contract  of  apprenticeship,  and  not  a  contract  of  hiring,  this  Court  con- 
firmed the  order  of  sessions. 


The  KING  v.  The  Inhabitants  of  SHIPTON,  in  the  County  of  SA- 
LOP.—p.  58. 

The  master  of  a  parish  apjjrentice  not  having  work  sufficient  for  liim,  proposed  to 
him  to  goto  a  farm  in  adiftcrcnt  parish,  occupied  by  the  master's  sister.  The 
pauper  assented  to  the  proposal,  and  agreed  with  her  to  work  there  for  a 
twelve-montli  for  his  meat  and  drink.  He  worked  for  her  for  four  years  and 
four  montlis.  During  the  first  two  years  he  received  from  her  meat  and  drink. 
During  the  third  and  fourth  lie  received  wages:  Held,  first,  tliat  no  settlement 
was  gained  by  the  service  with  the  sister,  tlie  service  not  heing  under  tlie  inden- 
tures: Held,  secondly,  that  there  had  been  :i  putting  away  nf  the  apprentice 
without  the  cfUjHeiiJof  tlie  justiccK,  within  tlic  nie.ining  of  the  statute  56  (i.  3.c. 
139.  s.  9.  and  that  the  pauper  did  not  by  his  service  with  the  sister  gain  any 
settlement  by  hiring  and  serviee. 


The  KING  V.  The  Inhabitants  of  STOURBRIDGE.— p.  06. 

The  mother  of  a  pauper  stated,  that  .ibout  twenty-four  years  ago  she  rccci vc4  iTin- 
ney  from  the  parish  offitcrs  at  S.  to  put  her  son  out  ai)i)renticc.  and  tliat  she 


156       Tiv.x  v.  TiiK  Inhau.  of  Stourbuidge.  E.  T.  1828. 

acconlinslv  jiut  hin»  out;  that  the  indenture  ^vas  signed  by  her,  the  pauper,  the 
master,  aiid  by  a  witness;  thai  slie  gave  it  to  the  wife  of  a  market-gardener 
■who  attended  the  market  of  S.,  to  take  to  the  overseers  of  the  parish  of  S.;th'it 
the  market-gardener  and  his  wife  were  both  dead,  the  latter  having  survivci 
her  husband;  that  she  did  not  know  whether  the  market-gardener's  wife  had 
left  any  will,  but  liad  heard  that  she  had.  Evidence  was  then  given  that  search 
had  been  made  in  the  parisii-chest  of  S.  for  the  indenture,  and  that  it  could  not 
be  found:  Held,  that  as  it  was  the  duty  of  tiic  overseers,  if  the  indenture  had 
come  into  their  possession,  to  deposit  it  in  the  parish-chest,  the  presumption 
■was,  that  it  was  lost  or  destroyed,  and,  therefore,  that  secondary  evidence  of 
the  execution  and  contents  of  the  indenture  was  admissible. 

Upon  an  appeal  against  an  order  of  two  justices,  bearing  date  the  27th 
day  of  April  lS::i7,  whereby  G.  Lay  ton,  his  wife,  and  four  children, 
were  removed  from  the  parish  of  Bromsgrave,  in  the  county  of  Worces- 
ter, to  the  township  of  Stourbridge  in  the  same  county,  the  sessions  con- 
firmed the  order,  subject  to  the  opinion  of  this  Court  on  tiie  following 
case: — 

The  respondent  parish  established  a  derivative  settlement  of  the  pau- 
per in  the  appellant  township  by  relief  given  to  his  mother.  The  mo- 
ther of  the  pauper  being  examined  on  the  part  of  the  appellants,  stated,  that 
about  twenty-four  years  ago  she  received  some  money  from  the  overseers 
of  Stourbridge  to  put  her  son  out  apprentice,  and  that  she  accordingly 
put  the  pauper,  at  the  age  of  seven  years,  apprentice  to  one  Clay,  of  the 
parish  of  Bromsgrave,  who  was  her  brother-in-law;  that  the  indenture 
was  signed  by  her,  by  the  pauper  G.  Layton,  by  the  master,  and  by  the 
man  who  had  filled  it  up;  that  she  gave  the  indenture  to  Nanny  Badger 
to  take  to  Stourbridge  to  the  overseers  who  had  given  her  the  money  to 
pay  for  the  stamp  lor  it;  that  it  was  directed  to  the  overseers  of  Stour- 
bridge; that  Nanny  Badger's  husband  was  a  market  gardener,  and  used 
to  attend  Stourbridge  market;  that  sometimes  he,  and  sometimes  his 
wife,  went  to  market,  and  the  indenture  was  to  be  carried  to  the  over- 
seers by  either  the  husband  or  the  wife  when  they  went  to  market;  that 
both  Nanny  Badger  and  her  husbailH  were  since  dead,  but  that  she  had 
survived  her  husband;  that  she  did  not  know  whether  Nanny  Badger 
had  left  any  will,  but  she  had  heard  that  she  had.  The  appellants  fur- 
ther proved  by  John  INIosely,  an  overseer  of  Stourbridge,  that  he  had 
searched  diligently  in  the  chest  where  the  papers  of  the  township  are  kept 
for  the  indenture  of  apprenticoship,  but  had  not  been  able  to  find  it;  and 
that  he  had  applied  to  the  executor  of  W.  Badger,  the  husband  of  Nanny 
Badger,  who  had  informed  him  that  the  indenture  had  never  come  to  his 
hands,  and  that  he  was  certain  that  no  such  paper  was  in  W.  Badger's 
j)ossession  when  he  died.  Under  these  circumstances  the  appellants  pro- 
posed to  give  secondary  evidence  of  the  due  execution  and  contents  of 
the  indenture.  But  this  evidence  was  objected  to  on  the  part  of  the 
respondents,  and  disallowed  by  the  court  of  quarter  sessions,  on  the 
ground  that  sufficient  evidence  had  not  been  given  of  the  loss  of  the  in- 
denture. The  question  for  the  opinion  of  this  court  was,  whether,  under 
the  circumstances  stated,  secondary  evidence  ought  to  have  been  ad- 
mitted of  the  execution  and  contents  of  the  indenture? 

Shut/  in  support  of  the  order  of  sessions.  The  secondary  evidence 
was  properly  rejected,  becnuse  sufficient  evidence  of  the  loss  of  the  in- 
denture was  not  given.  This  was  not  an  useless  instrument,  for  it 
would  be  required  whenever  it  became  necessary  to  prove  the  pauper's 
settlement.     The  parish  officers,  therefore,  had  an  interest  in  preserving 


8  Barnewall  &  Cresswell,  96.  157 

it.  Application  ought  to  have  been  made  to  the  overseer  to  whom  the 
indenture  was  sent.  There  was  no  evidence  to  shew  that  he  was  dead. 
The  mother  was  the  witness  of  the  appellants.  It  was  for  them  to  es- 
tablish their  case,  and  to  shew  that  the  indenture  was  lost.  The  parish 
chest  was  the  proper  depository;  but  when  it  was  not  found  there,  the 
inference  is  that  it  never  had  been  there.  It  might  have  been  delivered 
to  the  overseer  to  whom  it  had  been  sent,  and  might  therefore  be  in  his 
possession. 

M^Mahon  contra.  The  indenture  was  directed  to  the  overseers 
generally,  not  to  any  particular  overseer.  The  duty  of  the  overseers 
was  to  deposit  it  in  the  parish  chest,  and  it  is  to  be  presumed  that  they 
would  do  their  duty  in  that  respect,  and  it  was  not  found  there.  It  may, 
therefore,  fairly  be  presumed  that  it  never  was  delivered  to  the  over- 
seers, and  that  it  has  been  destroyed  or  lost. 

Lord  Tenteuben  C.  J.  I  think  that  under  the  circumstances  of  this 
case  there  was  reasonable  evidence  of  the  loss  or  destruction  of  the  in- 
denture, and  that  the  secondary  evidence  ought  to  have  been  received. 
If  it  hatl  been  handed  over  to  the  overseers  it  would  have  been  placed  in 
the  parish  chest,  for  it  was  their  duty  to  place  it  there.  Not  having 
been  found  there,  the  natural  presumption  is  that  it  is  lost. 

Bayley  J.  If  the  indenture  ever  found  its  way  into  the  parish  chest, 
which  was  the  proper  ])lace  of  custody  if  it  had  been  delivered  to  the 
parish  officers,  it  would  have  been  there.  Not  being  there,  the  presump- 
tion is  that  it  is  lost  or  destroyed. 

Order  of  sessions  quashed. 


The  KING  v.  The  Inhabitants  of  BARHAM.— p.  99. 

A  pauper  on  the  6th  of  April  1823  hired  a  house  for  a  year  at  the  rent  of  12/.  per 
annum  in  the  parish  of  A.  In  January  1824  he  became  chargealjle  to  that 
parisli,  and  was,  by  an  order  of  justices,  removed  to  the  parish  of  B.  There 
was  no  ajjpeal  against  tlie  order  of  removal.  I'he  pauper  returned  on  the  samc 
day  to  his  house  in  tlic  parish  of  A.,  and  continued  to  occupy  it  until  the  expira- 
tion of  the  year  for  wliicli  lie  had  liired  it,  and  paid  the  rent  for  tlie  year:  Held, 
that  as  the  pauper  had  hired  and  held  tiie  house  for  a  year,  and  paid  the 
rent  for  that  period,  all  the  requisites  of  the  statute  59  G.  3.  c.  50.  had  Ijeen 
complied  with,  and  that  he  gained  a  settlement  in  the  pai-ish  of  A.  by  renting  a 
tenement. 


BOLLAND  and  Others,  Assignees  of  W.  MARSH  and  Others,  Bank- 
rupt.s,  and  also  of  II.  FAUNTLEROY,  a  Bankrupt,  v.  J.  NASH.— 
p.  105. 

A.  kept  cash  with  M.  and  Co.  bankers,  and  accepted  a  bill  drawn  by  one  of  the 
partners  in  the  house  of  M.  and  Co.,  and  indorsed  by  that  partner  to  M.  and 
Co.,  who  discounted  it,  and  afterwards  indorsed  it  for  vahic  to  S.  Ueforc  the 
bill  became  due,  M.  and  ("o.  became  bankrupts,  havini;  funds  in  the  hands  of  S. 
more  than  sufficient  to  pay  the  bill,  and  havini^  in  tlieir  iiands  money  Ijclonjjing 
to  A.  When  tlie  bill  became  due  S.  presented  it  for  ])aynunt  to  A.,  who  hav- 
ing refused  payment,  S.  paid  himself  the  amoimt  out  of  the  funds  of  M.  and 
Co.  remaining  in  his  hands,  and  delivered  the  bill  to  their  assignees:  Held, 
in  an  action  brought  by  the  assignees  against  A.,  as  accejjtor  of  the  bill,  that 
there  had  bcr^n  before  the  l)ankruptcy  a  mutual  credit  between  the  bankrupts 
and  A.,  and  that  the  latter  was  entitled  to  set  off  against  the  sum  due  to  the 
bankrupts  on  the  bill,  the  debt  due  to  him  from  M.  and  Co.  at  the  lime  of  their 
bankruptcy. 


158  Rex  v.  Everett.  E.  T.  1828. 


The  KING  V.  The  BISHOP  of  ELY— p.  112. 

Mandiimus  granted  to  compel  a  bishop  to  allow  inspection  of  his  Register  of  pre- 
sentations and  institutions  to  a  living  in  his  iliocaee,  by  a  person  claiming  the 
right  of  patronage,  although  the  bisliop  also  claimed  that  right. 


The  KING  V.  EVERETT.— p.  114. 

An  information  stated  that  certain  goods  were  about  to  be  imported  into  Great 
Britain  from  parts  beyond  the  seas,  in  respect  of  which  certain  duties  would  be 
payable;  and  that  one  R.  H.,  at  the  time  of  committing  the  offence  thereinaf- 
ter mentioned,  was  a  person  employed  in  the  service  of  the  customs,  and  that  it 
was  the  duty  of  him,  as  such  person  so  employed  in  the  service  of  the  customs, 
to  arrest  and  detain  all  such  goods  as  should  be  imported,  which,  upon  such 
importation,  would  becomeforfeited  to  the  king,  by  virtue  of  any  act  of  parlia- 
ment relating  to  the  customs,  and  which  would  be  liable  to  be  seized;  and  that 
the  defendant,  well-knowing,  &c.  unlawfully  and  corruptly  solicited  R.  H.,  being 
such  person  so  employed  in  the  service  of  the  customs,  when  certain  goods 
should  be  imported,  which,  upon  importation,  would  be  liable  to  be  seized  or 
forfeited,  to  forbear  to  arrest  and  detain  the  same,  &c. :  Held,  that  inasmuch^ 
as  it  was  not  the  duty  of  every  person  employed  in  the  service  of  the  customs 
to  arrest  and  detain  goods  which  would  be  liable  to  be  seized  as  forfeited,  this 
count  was  bad,  for  want  of  shewing  thatR.  H.  was  a  person  whose  duty  it  was 
to  an-est  and  detain  such  goods. 

Information  for  unlawfully  soliciting  a  custom-house  officer  to  neglect 
his  duty.  The  third  count  stated  that  heretofore,  to  wit,  on  the  6th  day 
of  October,  in  the  8th  G.  4.,  at  Holt,  in  the  county  of  Norfolk,  certain 
goods  and  merchandizes,  to  wit,  spirituous  liquors,  were  about  to  be  im- 
ported and  brought  into  Great  Britain,  to  wit,  at,  &lc,,  from  parts  beyond 
the  seas,  in  respect  of  which  goods  and  merchandizes  certain  duties  of 
customs  would  then  and  there  be  due  and  payable  to  our  said  lord  the 
King,  and  that  at  the  time  of  committing  the  several  offences  thereinaf- 
ter mentioned  Richard  Hooper  was  a  person  employed  ill  the  service  of 
the  customs  of  our  said  lord  the  King,  to  wit,  at,  &c. ;  that  it  was  the  duty 
of  Richard  Hooper,  as  such  person  so  employed  in  the  service  of  the 
customs  of  our  said  lord  the  King  as  aforesaid,  to  arrest  and  detain  all  such 
goods  and  merchandizes  as  should  within  his  knowledge  be  imported 
and  brought  into  Great  Britain,  which  upon  such  importation  thereof 
would  become  forfeited  to  our  said  lord  the  King  by  virtue  of  any  acts  of 
parliament  relative  tohisMajesty'scustomsthen  inforce,  and  which  would 
then  and  there  be  liable  to  be  seized  as  forfeited  as  aforesaid,  in  order  that 
such  goods  and  merchandizes  might  be  dealt  with  according  to  law;  and 
that  the  defendant  well  knowing  the  premises,  but  having  no  regard  for 
the  laws  and  statutes  of  this  realm,  and  unlawfully  devising  and  intend- 
ing to  cheat  and  defraud  our  said  lord  the  King  in  his  said  revenue  of  the 
customs,  afterwards  on,  &c. ,  with  force  and  arms  at,  &c.  did  unlawfully 
and  corruptly  solicit  him  Richard  Hooper,  being  such  person  so  employ- 
ed in  the  service  of  the  customs  of  our  lord  the  King  as  aforesaid,  when 
certain  goods  and  merchandizes  should  be  imported  and  brought  into  this 
kingdom,  which  upon  such  importation  thereof  as  aforesaid  would  be- 
come forfeited  to  our  said  lord  the  King,  by  virtue  of  certain  acts  of 
parliament  relative  to  his  Majesty's  customs  then  in  force,  and  which 
would  be  liable  to  be  seized  as  forfeited  as  aforesaid,  unlawfully  and  con- 


SBaRNEWALL  &  CUESSWELL,  114.  159 

trary  to  the  duty  of  him  Hooper  as  such  person  so  employed  in  the 
service  of  the  customs  of  our  said  lord  the  King,  to  forbear  to  arrest  and 
detain  the  said  last-mentioned  goods  and  merchandizes,  in  order  that  the 
same  might  not  be  dealt  with  according  to  law,  whereby  our  said  lord 
the  King  might  and  would  be  then  and  there  defrauded  in  his  said  re- 
venue of  the  customs,  in  contempt,  &.c.  At  the  Spring  assizes  for  the 
county  of  Norfolk  1828,  the  defendant  was  found  guilty  on  the  third 
count  only,  and  Kelly  on  a  former  day  in  this  term  obtained  a  rule  nisi 
for  arresting  the  judgment,  upon  the  ground  that  it  did  not  appear  in  that 
count  that  Hooper  was  a  person  whose  duty  it  was  to  make  seizures  of 
goods  liable  to  forfeiture.  On  moving  for  the  rule  he  contended  (the 
allegation  bsing  merely  that  Hooper  was  a  person  employed  in  the  serv- 
ice of  the  customsj,  that  the  law  did  not  cast  upon  all  persons  in  the 
service  of  the  customs  the  duty  of  making  seizures;  and  that  although  the 
6  G.  4.  c.  108.  s.  34,  enacted  that  goods  liable  to  forfeiture  might  be 
seized  by  any  officer  of  the  army,  navy,  or  marines  duly  authorized  and 
on  full  pay,  or  officers  of  customs  or  excise,  or  any  person  having  authori- 
ty to  seize  from  the  commissioners  of  his  Majesty's  customs  or  excise; 
the  count  did  not  shew  that  Hooper  was  a  person  coming  within  any  of 
the  three  classes  described  in  that  section.  It  ought  to  have  shewn  that 
Hooper  was  a  person  whose  duty  it  was  to  make  seizures. 

The  Solicitor-General  and  Shepherd  now  shewed  cause.  It  suffi- 
ciently appears  that  Hooper  was  a  person  having  authority  from  the 
commissioners  of  customs  to  seize  goods,  and,  therefore,  within  the  third 
class  of  persons  mentioned  in  the  thirty-fourth  section;  for  the  allegation 
is,  that  he  was  a  person  in  the  service  of  the  customs,  and  that  it  was  his 
duty  to  make  seizures.  Now  a  person  in  the  service  of  the  customs, 
whose  duty  it  is  to  make  seizures,  must  be  intended  to  have  authority 
from  the  commissioners  to  seize.  Besides,  Hooper  also  comes  within 
the  second  class  of  persons  described  in  the  thirty-fourth  section,  because 
he  is  shewn  to  be  an  officer  of  the  customs;  for  by  the  eighth  section  of 
6  G.  4.  c.  106.  "  every  person  employed  on  any  duty  or  service  relating 
to  the  customs,  by  the  orders  of  the  commissioners  of  his  Majesty's  cus- 
toms (whether  previously  or  subsequently  expressed  J,  shall  be  deemed 
to  be  tlic  officer  of  the  customs  for  that  duty  or  service." 

Lord  Tenterden  C.  J.  The  objection  must  prevail.  The  count 
alleges  that  R.  Hooper  was  a  person  employed  in  the  service  of  the  cus- 
toms of  our  lord  the  King,  and  that  it  was  his  duty  as  such  person  so 
employed  in  the  service  of  the  customs  of  o^ir  said  lord  the  King,  to 
arrest  and  detain  all  such  goods  and  merchandizes  as  should  within  his 
knowledge  be  imported  into  Great  Britain,  whicli  U|)on  such  importa- 
tion would  become  forfeited  to  our  said  lord  the  King  by  virtue  of  any 
acts  of  parliament,  &c.  The  allegatiun  that  Hooper  was  a  person  cm- 
pIo3'cd  in  the  service  of  the  customs  is  an  allegation  of  fact.  'J'he  alle- 
gation that  it  was  his  duty  to  seize  goods  wiiich  upon  importation  were 
forfeite<l,  is  an  allegation  of  matter  of  law.  That  being  so,  the  fact 
from  which  that  duty  arose  ought  to  have  been  stated  in  the  count.  If, 
indeed,  it  could  be  said  to  be  the  duty  of  every  person  employed  in  the 
vservice  of  the  customs  to  seize  such  goods,  then  the  allegation  would 
have  been  sufficient.  But  it  is  clearly  not  the  duty  of  every  such  per- 
son; as,  for  instance,  it  is  not  the  duty  of  a  |)ortcr  employed  in  the  ser- 
vice of  the  customs  to  seize  such  goods.  Tiic  case  of  Max  v.  lioherls, 
12  East,  89;  is  in  point;  there  the  count  staled  *'  that  the  defendants 


160  Samuel  v.  Royal  Exchange.  E.  T.  1828. 

boinc;  owners  of  a  ship  at  Liverpool  bound  on  a  voyage  from  thence  to 
^V'alc^ford,  the  plaintitf  shipped  goods  on  board  to  be  carried  upon  the 
said  voyage  by  the  defendants,  ami  to  be  delivered  at  W.  to  the  plain- 
tifl''s  assigns;  and  thereupon  the  plaintiff  insured  the  goods  at  and  from 
L.  to  W.,  and  then  averred  that  it  was  the  duty  of  the  defendants,  as 
such  owners,  to  cause  the  ship  to  proceed  on  tiie  voyage  from  L.  to  W. 
without  deviation;  and  alleged  a  breach  of  such  duty  by  their  causing 
the  siiij)  to  deviate  from  the  course  of  that  voyage,  after  which  she  was 
lost,  with  the  goods;  and  the  plaintiff,  by  reason  of  such  deviation,  lost 
his  goods,  and  the  benefit  of  his  policy,  &c.;"  and  it  was  held  that  the 
count  cduld  not  be  sustained.  Lord  Ellcnboroiigh,  in  delivering  the 
judgment  of  the  Court  in  that  case,  says,  "The  first  count  of  the  de- 
claration alleges  a  shipment  by  the  plaintiff  of  goods  on  board  a  vessel 
of  which  the  defendants  are  stated  to  be  owners;  but  it  does  not  pro- 
reed  to  state  that  such  goods  were  delivered  to  or  received  by  the  de- 
fendants, or  that  the  defendants  in  any  manner  ever  had  notice  of  the 
fact  of  such  shipment.  So  that  in  this  count  there  is  not  only  a  want  of 
any  words  importing  a  promise  by  the  one  party  to  the  other,  but  there 
is  also  an  entire  absence  of  all  circumstances  or  facts  from  which  any 
promise  or  agreement  could  be  implied,  or  duty  inferred  between  them 
in  respect  to  such  goods."  The  ground  of  the  decision  in  that  case 
was,  that  there  was  not  any  fact  alleged  from  which  the  law  would  im- 
ply any  duty  in  the  defendant  with  respect  to  the  goods.  Now,  in  this 
case,  there  is  not  any  fact  stated  in  consequence  of  which  the  law  cast 
on  Hooper  the  duty  of  making  seizures.  By  the  6  G.  4.  c.  108.  s.  34. 
that  duty  belongs  to  an  officer  of  the  army,  navy,  or  marines,  or  officers 
of  the  excise  or  customs,  or  a  person  having  authority  from  the  com- 
missioners of  the  customs  or  excise.  It  is  not  averred  that  Hooper  was 
a  person  coming  within  any  of  these  classes.  Neither  is  it  averred  that 
he  was  a  person  employed  on  the  duty  or  service  of  making  this  seizure, 
so  as  to  make  him  an  officer  of  the  customs  for  that  duty  or  service  with- 
in the  statute  6  G.  4.  c.  lOG.  s.  8.  The  rule  for  arresting  th©  judgment 
must  be  made  absolute. 

Rule  absolute. 


SAMUEL  V.  The  ROYAL  EXCHANGE  Assurance  Company.— 

p.  119. 

A  vessel  insured  from  Sierra  Leone  to  London,  and  upon  which  the  insurance 
was  to  endure  until  she  had  been  moored  in  good  safety  twenty-four  hours,  ar- 
rived in  the  evening  of  the  18th  of  February,  and  the  captain  having  orders 
to  take  her  into  the  King's  Dock  at  Deptford,  moored  her  near  the  dock-gates. 
On  the  following  morning  he  was  informed  at  the  dock,  that  no  order  for  his 
admittance  had  been  received;  but  that  if  it  had,  the  vessel  could  not  be  then 
admitted,  on  account  of  the  quantity  of  ice  in  the  river.  The  order  was  sent 
by  the  Navy  Board  on  the  21st,  but  on  account  of  the  ice,  the  ship  could  not 
be  moved  until  the  27th,  and  then,  in  warping  hef  towards  the  dock,  a  rope 
broke,  she  grounded,  and  was  totally  lost.  The  jury  found  that  the  vessel  re- 
mained at  her  moorings  from  the  18th  to  the  27th  of  February  on  account  of 
the  ice,  and  not  for  want  of  an  order  to  enter  the  dock.  Held,  that  upon  this 
finding,  the  plaintiff  was  entitled  to  recover,  for  that  the  place  where  the  ves- 
sel was  moored,  not  being  the  place  of  her  ultimate  destination,  the  policy 
did  not  expire  when  she  had  been  there  in  safety  twenty-four  hours;  and  as  the 
vessel  remained  at  those  moorings  on  account  of  the  ice,  and  not  waiting  for 
the  order,  the  underwriters  were  not  discharged  by  the  delay. 


S  Bahnewall  &  Cresswell,  119.  161 

Covenant  on  a  policy  of  assurance  at  and  from  Sierra  Leone  to 
London,  *' on  ship,  called  Salmon  River,  and  freight,  to  begin  at 
Sierra  Leone,  and  endure  upon  the  ship  until  she  shall  have  arrived  at 
London  and  hath  there  moored  at  anchor  twenty-four  hours  in  good 
safety,  and  upon  the  goods  until  the  same  be  there  discharged  and  safe- 
ly landed."  Averment,  that  whilst  the  vessel  was  proceeding  on  her 
voyage,  and  before  she  had  been  moored  at  London  twenty-four  hours, 
she  grounded,  and  was  wrecked  and  totally  lost.  Second  count  for  a 
loss  by  barratry  of  the  master.  Plea,  the  general  issue,  according  to 
the  statute,  that  the  corporation  have  not  broken  their  covenants,  or 
any  of  them.  At  the  trial  before.Lord  TenterdenC.  J.,  at  the  London 
sittings  after  Trinity  term  1S27,  it  appeared  that  the  Salmon  River  sail- 
ed from  Sierra  Leone  for  the  port  of  London  on   the  3d  of  December 

1826,  laden  with  teak,  and  chartered  to  one  Lennox,  who  had  entered 
into  a  contract  with  the  Navy  Board,  to  supply  them  with  a  cargo  of 
teak  to  arrive  before  the  end  of  that  month.     On  the  2d  of  February 

1827,  the  vessel  having  received  damage  in  a  gale  of  wind,  the  captain 
put  into  Dover,  and  remained  there  under  repair  until  the  13th  of  Feb- 
ruary. During  that  interval  he  came  to  London  for  orders,  and  Len- 
nox directed  him  to  take  the  ship  into  the  King's  Dock,  at  Deptford, 
and  deliver  her  cargo  there.  In  the  afternoon  of  Sunday  the  ISth  of 
February  the  vessel  arrived  at  Deptford,  and  was  moored  alongside  a 
King's  ship,  near  the  dock  gates.  On  the  following  morning  the  cap- 
tain made  inquiries  at  the  dock-yard  respecting  the  admission  of  his 
ship,  and  was  informed  that  no  bills  of  lading  had  arrived,  and  there 
were  no  orders  to  admit  her;  but  that  she  could  not  under  any  circum- 
stances be  then  admitted  on  account  of  the  quantity  of  ice  in  the  river. 
The  captain  then  went  to  London,  and  after  some  negotiation  with 
Lennox,  the  Navy  Board  consented  to  take  the  cargo,  which  they  at 
first  refused  to  do,  because  it  arrived  out  of  time,  and  on  the  21st  of 
February  the  chief  officer  of  the  dock  received  orders  to  admit  the 
vessel.  From  the  ISth  until  the  25th  of  February  the  quantity  of  ice 
in  the  river  continually  increased,  but  on  that  day  the  frost  gave  way, 
and  on  the  27lh  the  Salmon  River  was  cast  off  from  her  moorings  and 
warped  towards  the  dock.  In  consequence  of  a  rope  breaking,  she 
went  ashore  near  the  dock-gatcs,  and  was  totally  lost.  It  aj)pcared  also 
that  many  vessels  la'len  with  timber  discharged  their  cargoes  at  the 
place  where  the  Salmon  River  had  i)cen  moored.  Upon  this  evidence, 
it  was  contended  for  the  defendants,  either  that  the  place  where  the 
Salmon  River  was  moored  must  be  considered  as  the  place  of  iier  destin- 
ation, in  which  case  she  had  been  in  good  safety  for  twenty-four  hours 
before  the  lo.ss,  or  that  if  it  were  not,  the  captain  had  remained  there 
an  unreasonable  time,  and  conserpicntly  the  underwriters  were  dis- 
charged. The  Lord  Chief  Justice  loft  it  to  the  jury  to  say  whether  the 
Salmon  Kiver  remained  lashed  to  the  King's  ship  waiting  for  an  order 
to  be  admitted  into  the  King's  J)ock,  or  whether  she  remained  there  be- 
cause from  the  18th  to  the  27th  of  February  she  could  not  have  removed 
elsewhere  for  the  purpose  of  delivering  her  cargo  had  the  owner  wished 
it,  and  directefl  them,  if  they  thought  she  remained  waiting  for  the  order, 
to  fmd  for  the  defendants,  otherwise  for  the  plaintiff.  The  jury  having 
found  a  verdict  for  the  plaintiff,  the  Attorney-General,  in  Michaelmas 
term,  obtained   a   rule  nisi  for  entering  a  nonsuit,  against  which 

Campbell,   Pollock,  and  Joshvti  Evans  shewed  cause. 
VOL.  XV.  21 


163  BuAziER  V.  JoNiiS.  E.  T.  1828. 

Sir  J.  Scarlc/l,  ami  Jiosanqiict  Serjt.  contra. 

Lord  Tentekden  C.  J.     Upon  the  whole,   I  am  of  opinion  that  this 
rule  oup;ht  to  l)C  discharged.      It  has  hccn  contended,  that  his  Majesty's 
dock  at  Dcptlbrd  cannot  be  considered  as  the  place  of  destination  of  the 
Salmon  River.      But  upon  the  evidence,  I  think  it  was  the  place  of  her 
destination.     The  master  was  ordered  to  take  her  there,  and  he  came 
up  the  river  intending  to  go  there.      It  is  true  that  at  that  time  he  had 
no  right  to  enter  the  dock,   and  it  was  quite  uncertain  whether  permis- 
sion to  do  so  would  be  granted  or  not.     He  arrived  on  the  evening  of 
Sunday  the  18th  of  February;  of  course  he  could  not  then  go  into  the 
dock,  and  on  the  Monday  he  found  that  no  orders  for  his  admission  had 
been  received;  and  if  at  that  time  the  vessel  could  have  gone  in,  her 
detention  at  the  moorings  would  have  been  improper,  and  the  under- 
writers thereby  discharged.     That  question  of  fact  I   left  to  the  jury, 
and  they  found  that  the  vessel   did   not  remain  at  Dcptford  for  want  of 
an  order  to  enter  the  dock,  but  because  she  could  not  be  safely  moved 
to  any  other  part  of  the  river.     Another  point  made  was,  that  the  place 
where  the  vessel  was  moored  must  be  considered  as  her  place  of  dis- 
charge, because  some  vessels  do  in  fact  discharge  their  cargoes  there. 
But  it  was  manifest  that  there  never  was  an  intention  to  discharge  her 
cargo  there,  the  orders  to  the  master  being  to  take  her  into  the  King's 
dock.     That  ground  of  defence  therefore  fails;  and  as  the  delay  would 
only  be  improper  if  the  vessel  could  have  gone  to  some  other  place  of 
discharge  in  the  river,  I  think  that  the  plaintiff  is  entitled  to  retain  the 
verdict  found  in  his  favour. 

HoLROYDJ.(a)  It  seems  to  me  that  the  question  is  concluded  by 
the  finding  of  the  jury,  that  the  state  of  the  river  prevented  the  removal 
of  the  ship  from  the  ISth  to  the  27th  of  February.  Under  such  cir- 
cumstances, there  could  be  no  improper  delay,  and  there  is  no  ground 
for  considering  the  place  where  she  was  lying  as  the  place  of  her  ulti- 
mate destination. 

LiTTLEDAi.E  J.  concurrcd. 

Rule  discharged. 

(a)  Bayley  J.  had  gone  to  Chambers. 


BRAZIER  v.  JONES.— p.  124. 

Id  an  action  against  the  Marshal  for  an  escape,  tlie  declaration  alleged,  that 
plaintiff  and  W.  B.  having  divers  disputes,  by  mutual  bonds  of  submission,  re- 
ferred them  to  the  arbitration  of  C.  and  D.  That  an  award  was  made,  order- 
ing W.  B.  to  pay  the  plaintiff  a  certain  sum  of  money  on,  &c.;  and  because  the 
award  was  not  performed,  the  plaintiff  sued  and  prosecuted  out  of  the  court 
of  C.  P.  a  writ  commanding  the  defendant  to  attach  W.  B.  (then  being  in  his 
custody),  so  that  he  might  have  his  body  before  the  Justices  of  C.  P.  on,  &c., 
to  answer,  &c.;  and  W.  B.  being  and  remaining  in  the  custody  of  defendant  as 
such  marshal,  by  virtue  of  the  attachment,  on,  &c.  was  brought  before  Sir  S. 
G,,  a  j\idge  of  C.  P.,  at  his  chamljcrs,  by  writ  of  habeas  corpus,  and  by  him 
committed  to  the  custody  of  the  Warden  of  the  Fleet,  and  afterwards  was 
brought  before  Sir  J.  L.,  a  judge  of  K.  B.,  at  chambers,  and  by  him  committed 
to  the  custody  of  the  defendant  charged  with  the  attachment,  and  that  defen- 
dant afterwards  suffered  him  to  escape: 

Held,  that  plaintiff  was  bound  to  prove  the  execution  of  the  bond  of  submission 
b/  himself  as  well  as  by  W.  B.     Scmblc,  That  he  need  not  have  done  so  had 


8  Barnewall  &  Cresswell,  124.  163 

he  alleged  and  proved  a  rule  of  C.P.  ordering  the  issuing  of  the  attachment, 
although  proof  of  such  rule,  without  a  statement  of  it  in  the  declaration,  would 
not  be  sufficient. 
Quxre,  Whether  the  commitment  by  a  judge  at  chambers  was  legal? 

This  was  an  action  against  the  Marshal  of  K.  B.  for  an  escape.  The 
first  count  of  the  declaration  stated,  that  before  the  committing  of  the 
grievances,  &c.  divers  differences  and  disputes  had  arisen  and  were  de- 
pending between  plaintiff  and  one  W.  B.,  and   in  order  to  put  an  end 
to  them  it  was   mutually  agreed  upon  by  and  between  plaintiff  and  W. 
B.  that  all  the  said  matters   in   difference  should  be  referred  to  certain 
persons,  to  wit,   &c.;  and   thereupon   in  pursuance  of  such  agreement 
plaintiff  and  W.  B,  on,  &c.  did  by  mutual  bonds  of  submission,   bear- 
ing date,  &c.  submit  themselves  to,  and  bind  themselves  to  abide  the 
award  of  the  said,  &c.  concerning  the  said  matters  in  difference  under 
the  terms  and  upon  the  conditions  more  particularly  set  forth  in  the  re- 
spective conditions  of  the  said  bonds  of  submission.     That  the  arbitra- 
tors afterwards,  to  wit,  on,  &c.  did   amongst  other  things  award,  that 
W.  B.  should  pay  to  the  plaintiff  on,  &c.  the  sum  of  3S5/. ,  &c.,  of  all 
which   premises  W.  B.  had  notice.     And  plaintiff  for  having  perform- 
ance of  the  award,  procured   the   bond  of  submission  entered   into  by 
W.  B.  to  be  made  a  rule  of  C.  P.     And  because  the  award  was  after- 
wards, to  wit,  on,  &c.   so  far  as  concerned  the  said  W.  B.  wholly  un- 
performed; and  because  the  day  assigned  for  payment  of  the  said  sum 
of  money  in  the  award  mentioned  had  long  since  elapsed,  the  plaintiff 
on,  &c.  sued  and  prosecuted  out  of  the  C.  P.  a  writ  directed  to  the  de- 
fendant, (W.  B.  then  and  there  being  in  the  custody  of  the  defendant 
2S   Marshal  of  K.  B. )   commanding  him   to  attach  W.  ]i.  so  that  he 
might  have   his   body  before  the  justices  of  C.  P.  at  Westminster  on, 
&c,  to  answer,  &c.     And  W.  B,  being  and  remaining  in  custody  of  the 
defendant  as  such  Marshal,  under  and  by  virtue  of  the  said  attachment 
afterwards,  to  wit,  on,  &:c.    was  duly  brought  before  Sir  S.  Gaselee, 
Knight,  then  and  now  being,  &c.  at  his  chambers,  &c.  in  his  own  per- 
son,  in  custody  of  the   said  defenciant  as  such  Marshal,  by  virtue  of  a 
writ  of  habeas  corpus  directed  to   the  defendant;  and  W.  B.  was  then 
and  there  committed  by  Sir  S.  G.  to  the  custody  of  the  Warden  of  the 
Fleet  in  contemjit,    for  the   non-payment  of  the  said  sum  of  385/.,  &c. 
And  W.  B.  being  and  remaining  in  custody  of  the  said  Warden  after- 
wards,  to  wit,  on,   &.C.  was   brought  before   Sir  ./.  Litlteddlc,  Knight, 
then  and  now  being,  &c.   at  his  chambers  in,  &c.  in  his  own  person  in 
custody  of  the  said  Warden,  by  virtue  of  another  writ  of  habeas  corpus; 
and  the  said  W.  B.  was  then  and  there  committed  b)'  the  said  Sir^A  L. 
to  the  custody  of  the  defendant   as   such  Marshal  as  aforesaid,   charged 
with  the  said  contempt;  and  the  defendant  then  and  there  took  the  said 
W.  B.    into  his  custody,  &C.  and  afterwards,  to  wit,   on,  &c.  voluntarily 
suffered  and  permitted  him  to  escape.      The  second    count   stated,   that 
W.   li.  on,  &,c.  had  been  duly  committed  to  the  custody  of  the  Warden 
of  the  Fleet  by  Sir  S.  (i .  in  contempt  for  the  non-payment  of  the  sum 
of  3.S5/. ,  &c.  pursuant  to  the  said  nward  so  made  as  aforesaid,  and  the 
bond  of  submission  to   the  said   award,  and    the  condition   thereunder 
written   and  entered  into   by  the  saifj  W.  B. ;  and  the  submission  be- 
tween the  said  plaintiff  and  the  sairl  W.  B.  mentioned  in    the  said   last- 
mentioned  condition,  and  wliirli  had  Iieen  bc-forc  that  lime  duly  made  a 
rule  of  llic  said  last  ineiilinnc-l  ("onrf       'I'hc  dcrlarjtion  then  averred  a 


164  Brazier  v.  Jones.  E.  T,  1828. 

coniniitniciit  of  W.  0.  lo  the  custody  of  the  defendant  by  Sir  J^  L., 
and  an  Lscajie  as  before.  Plea,  not  guilty.  At  the  trial  before  Lord 
Tenterde7i,  C.  J.  at  the  Westminster  sittings  after  Trinity  term  1S27, 
the  plaintilf  proved  the  execution  of  the  bond  of  submission  by  W.  B. 
but  not  by  himself.  It  was  objected  that,  unless  the  execution  of  the 
bond  by  both  were  proved,  the  submission  would  not  appear  to  be 
mutual,  and,  consequently,  the  award  could  not  be  binding.  The  Lord 
Chief  Justice  reserved  this  point.  It  then  appeared  that  the  award  was 
not  made  within  the  time  originally  limited,  but  there  was  an  indorse- 
ment on  the  bond,  bearing  date  before  the  expiration  of  that  time, 
whereby  it  was  enlarged,  and  the  award  was  made  within  the  enlarged 
time.  This  indorsement  was  proved  to  be  in  the  hand-writing  of  the 
arbitrator,  but  no  evidence  was  given  of  its  being  written  at  the  time 
of  its  date.  The  Lord  Chief  Justice  held  that  such  evidence  was  not 
necessary,  and  the  award  was  read.  The  plaintiff  then  gave  in  evi- 
dence a  rule  of  C.  P.,  making  the  submission  a  rule  of  court,  the  rule 
nisi  and  the  rule  absolute  for  an  attachment,  the  issuing  of  the  attach- 
ment, and  the  commitment  of  W.  B.  for  the  contempt,  by  a  Judge  at 
chambers,  as  alleged  in  the  declaration,  and  the  subsequent  escape  of 
the  prisoner.  For  the  defendant  it  was  objected,  that  this  commitment 
was  illegal,  for  that  it  ought  to  have  been  by  the  Court,  and  not  by  a 
Judge  at  chambers.  This  point  was  reserved  by  the  Lord  Chief  Jus- 
tice; and,  subject  to  the  questions  reserved,  the  case  was  left  to  the 
jury,  who  found  a  verdict  for  the  plaintiff,  with  nominal  damages.  In 
JSIichaelmas  term  a  rule  nisi  for  entering  a  nonsuit  was  granted,  against 
■which 

Sir  J.  Scarlett  and  Patteson  shewed  cause. 

Gurney  and  Campbell  contra,  referred  to  Rogers  v.  Jones,  7  B. 
&  C.  80.     They  were  then  stopped  by  the  Court. 

LordTzNTERDEN  C.  J.  The  first  point  is  the  only  one  upon  which 
I  propose  to  say  any  thing  at  present,  viz.  whether  the  plaintifi  having 
averred,  but  not  having  given  evidence  of  a  mutual  submission,  failed  to 
prove  a  material  allegation.  The  answer  given  is,  that  the  allegation 
was  wholly  unnecessary,  and  that  sufficient  remains  if  it  be  struck  out, 
for  that  as  against  the  marshal  proof  of  the  order  of  the  Court  of  C.  P. 
for  the  attachment  was  sufficient.  If  the  declaration  had  commenced 
by  a  statement  of  that  order,  I  should  have  been  inclined  to  think  it 
sufficient;  but  there  is  no  allegation  that  the  Court  made  an  order  for  the 
attachment.  The  averment  is,  that  the  plaintiff  sued  and  prosecuted  out 
of  the  Court  of  C.  P.  a  writ,  commanding  tlie  defendant  to  attach  W. 
B.,  so  that  it  would  appear  to  be  the  act  of  the  party.  Then  it  was  urged 
that  proof  of  the  rule  for  the  attachment  sufficed,  without  proof  of  the 
mutual  submission;  according  to  which  argument,  want  of  proof  of  mat- 
ter alleged  is  to  be  compensated  by  proof  of  matter  not  alleged.  I  think 
that  would  be  a  most  dangerous  doctrine.  Suppose  neither  the  thing 
averred  nor  the  matter  not  averred  were  proved,  still  there  could  be  no 
motion  in  arrest  of  judgment,  for  after  verdict  it  would  be  assumed  that 
all  the  allegations  of  the  declaration  had  been  proved.  On  this  ground, 
I  think  that  the  rule  for  entering  a  nonsuit  must  be  made  absolute. 

Bayley  J.  In  an  action  for  an  escape,  the  plaintiff  must  aver  and 
shew  in  evidence,  not  only  the  escape  of  the  prisoner,  but  that  he  was 
previously  lawfully  detained.  Here  nothing  analogous  to  a  judgment  is 
alleged,  but  certain  other  matters  entitling  the  plaintiff  to  an  attachment 


8  BAkNEWALL  &  Cresswell,  124.  165 

are  shewn.  Thus  the  award  is  stated,  but  that  would  not  suffice  unless 
made  upon  the  mutual  submission  of  the  parties;  such  submission  was, 
therefore,  necessarily  alleged;  but  the  plaintifl'  failed  to  prove  it.  I 
have  been  considering  whether  it  could,  after  verdict,  be  assumed  that 
an  order  for  the  attachment  was  proved;  but  I  am  satisfied  that  it  cannot, 
for  the  rule  is,  that  you  may  presume  every  thing  to  have  been  proved 
which  the  allegations  on  the  record  made  necessary,  but  nothing  else. 
Proof  of  that  order  could  not,  therefore,  be  properly  substituted  for  proof 
of  an  allegation  on  the  record. 

HoLRovu  J.  Although  if  the  rule  of  the  Court  of  Common  Pleas  for 
the  attachment  had  been  made  the  foundation  of  the  plaintifl's  action, 
proof  of  it  might  have  sufficed,  still  as  that  was  not  done,  but  other  things 
were  relied  on  in  the  declaration,  the  plaintiff  was  bound  to  give  legal 
evidence  of  them. 

LiTTLEDALE  J.  It  was  in  the  option  of  the  party  to  begin  his  declara- 
tion with  the  rule  for  the  attachment,  or  to  state  the  preliminary  matters, 
and  the  issuing  of  the  attachment,  without  mentioning  the  rule.  I  think 
that  on  a  motion  in  arrest  of  judgment,  either  form  would  have  sufficed. 
But  here  the  question  is  not  as  to  the  form  of  the  declaration,  but  as  to 
the  proof  of  the  allegations.  And  this  does  not  come  within  any  of 
the  cases  as  to  omitting  proof  of  superfluous  allegations,  for  in  all  of  them 
there  was  proof  of  the  material  things  alleged.  Here  the  evidence  re- 
lied on  was  of  a  matter  not  alleged.  Nor  can  the  rule  for  the  attachment 
be  considered  as  evidence  of  the  preliminary  matters,  for  it  appears  to 
have  been  made  upon  reading  certain  affidavits,  the  contents  of  which 
were  not  shewn.  There  was  no  evidence  that  those  affidavits  related 
to  the  preliminary  matters  alleged:  the  rule,  therefore,  could  not  be  proof 
of  those  matters.  Rule  absolute. 


LOVICK  V.  CROVVDER   and  Another,   late  Sheriffs  of  the  City  of 
LONDON.— p.  132. 

In  Marcli,  the  then  slieriffs  of  London  seized  the  goods  of  a  debtor  by  virtue  of 
a  fieri  facias.  An  officer  was  put  in  possession  of  the  goods:  but  the  execution 
creditor  directed  the  sheriffs  not  to  sell,  and  the  debtor  continued  to  have  the 
controul  of  his  goods  until  Noveml)er,  wlien  another  execution  creditor  sued 
out  a  fieri  facias,  directed  to  the  succeeding  sheriffs  of  London:  Held,  that  the 
latter  were  bound  to  levy  under  this  second  fieri  faciiis,  and  that  it  was  their 
duty,  when  they  found  the  officer  of  the  former  sheriffs  in  possession,  to  inquire 
into  the  facts;  and  if  they  had  done  so,  they  would  have  learned  that  the  first 
execution  was  fraudulent. 

Tnis  was  an  action  against  the  defendants  for  a  false  return  to  a  writ 
of  fieri  facias  issued  against  the  goods  of  one  Harrison.  Plea,  not  guilty. 
At  the  trial  before  Lord  Tentcrdoiil.  J.  at  the  London  sittings  after 
Trinity  term  LS27,  it  appeared  that  the  plaintilf,  having  rccMjvcrcd  judg- 
ment against  Harrison,  sued  out  a  fi.  fa.  against  the  goods  of  Harrison  on 
the  2(1  of  Novcrnijcr  182.5,  and  that  the  defendants,  being  at  that  time 
sheriffs  of  London,  on  the  12th  of  November  returned  nulla  bona; 
that  Harrison  carried  on  the  business  of  a  wine-merchant  in  Fleet 
Market,  and  at  the  time  when  the  writ  was  delivered  to  the  de- 
fendants there  were  large  f|uantities  of  wine  on  his  premises.  It  ap- 
peared further,  tliat  down  to  the  2d  of  November  1825,  Ihc  business  was 
carried  on  on  Harrison's  account,  the  clerks  or  servants  always  account- 


166  LovicK  i>.  CiioWDEK.  E.  T.  1828. 

ing  to  him  i'ov  tlie  monies  received.  On  the  part  of  the  defendants  it 
was  proved,  that  on  the  31st  of  JNlarcli  1825,  a  fi.  fa.,  at  the  suit  of  one 
M'>iab,  had  issued  against  the  goods  of  Harrison,  directed  to  A.  Brown 
and  J.  Key,  being  tiien  sherill's  of  London;  that  they  under  that  writ 
seized  the  goods  of  Harrison,  and  phiced  an  ollicer  in  possession,  but 
that  by  tlic  direction  of  M'Nab  they  had  forl)orne  to  sell  the  same,  and 
the  goods  continued  unsold  in  November,  when  the  plaintiil's  writ  was 
issued.  It  was  further  proved  on  the  part  of  the  defendants,  that  the 
plaintiff,  after  the  return  of  nulla  bona  had  been  made  by  the  defendants 
to  his  writ  of  fi.  fa.,  had  sued  out  a  ca.  sa.  against  Harrison;  and  that 
Harrison  having  afterwards  become  bankrupt,  he  had  proved  his  debt 
under  the  commission.  Upon  these  facts  it  was  conceded  by  the  defen- 
dants' counsel,  that  M'Nab  having  allowed  Harrison  to  have  the  controul 
of  the  property  for  so  many  months,  the  defendants,  if  they  had  been 
sheriffs  of  London  at  the  time  when  the  writ  issued  at  the  suit  of  M'JNab, 
would  have  been  bound  to  take  notice  that  the  first  execution  was  fradu- 
lent,  and  to  levy  under  the  plaintiff's  writ;  but  it  was  contended  that 
they  having  come  into  office  after  Harrison's  goods  had  been  seized 
under  M'JNab's  execution,  could  not  be  presumed  to  have  any  know- 
ledge of  the  facts  attending  that  execution;  and  that  finding  an  ollicer 
already  in  possession,  they  were  not  bound  to  make  any  enquiry.  It 
was  further  contended,  that  the  plaintiff  had  waived  his  right  of  action 
against  the  defendants,  by  suing  out  a  ca.  sa.  against  Harrison,  and  prov- 
ing under  his  commission.  Lord  TenterdenC.  J.  directed  the  jury  to 
find  a  verdict  for  the  plaintiff  for  259/.  l5.  Of/.,  the  value  of  Harrison's 
goods,  and  gave  liberty  to  the  defendants  to  move  to  enter  a  nonsuit. 
A  rule  nisi  having  been  obtained  by  Gurney  in  last  Michaelmas  term. 
Sir  J.  Scarlett  and  Flutt  now  shewed  cause. 
Gurney  and  Cumyn  contra. 

Lord  Tentkrden  C.  J.      It  seems  to  have  been  conceded  at  the  trial, 
that  if  the  same  persons  who  filled  the  office  of  sheriff  in  March,  when 
the  first  execution  issued,  had  filled  it  in  November,  they  would  have 
been  bound  to  levy;  and,  consequently,  if  the  defendants  had  tilled  the 
oflice  at  those  times,  they  would  have  been  liable  in  this  action.     But  it 
was  said  that  the  goods,  having  been  seized  by  the  former  sheriffs,  were 
in  custody  of  the  law,  and  that  they  could  not,  therefore,  be  seized  by  the 
defendants.  It  seems  to  me,  that  they  were  not  in  custody  of  the  law  at  the 
time  when  the  fieri  facias  at  the  suit  of  the  plaintiff  was  sued  out;  they 
were  in  custody  of  the  slieriff 's  officer  by  virtue  of  legal  process  fraudu- 
lently kept  on.      Tiie  first  fieri  facias  was  sued  out  returnable  in  Easter 
term.     The  sheriff  was  never  ruled  to  return  the  writ,  and  he  made  no 
return.      Harrison  continued  in  possession,  and  carried  on  the  business 
as  usual  so  far  as  his  failing  circumstances  permitted.      When  the  plain- 
tiff's writ  came  to  the  defendants,  and  they  found  the  officers  of  the 
former  sheriffs  in  possession,  it  became  their  duty  to  enquire  by  what 
authority  they  were  there.      I  ihink  the  law  does  impose  on  a  sheriff  the 
duty  of  making  such  enquiry.      The  possession  of  the  former  sheriff  is 
no  more  than  the  possessionof  any  third  person  would  be  under  a  bill  of 
sale,  Prec,  in  Cha.  286,  287.    Now,  if  a  party  be  in  possession  of  goods  ap- 
parently the  property  of  a  debtor,  the  sheriff,  who  has  a  fieri  facias  to 
execute,  is  bound  to  enquire  whether  the  party  in  possession  is  so  bona 
fide;  and  if  he  find  the  possession  is  held  under  a  fraudulent  bill  of  sale, 
he  is  bound  to  treat  it  as  null  and  \oid,  and  levy  under  the  writ.      The 
rule  for  entering  a  nonsuit  must  be  discharged. 


8  Baunewall  &  Ckesswell,  132.  167 

Bayley  J.  There  cannot  be  any  doubt  that  these  goods  were  liable 
to  the  plaintiff's  execution.  Where  a  plaintiff  sues  out  execution,  and 
seizes  under  a  fieri  facias  the  goods  of  his  debtor,  and  suffers  iheni  to 
remain  long  in  the  debtor's  hands,  a  subsequent  execution  creditor  may 
treat  the  goods  as  the  goods  of  the  debtor.  The  only  question  is,  does 
the  change  of  sherifl'  make  any  difference  ?  Being  apparently  the  goods 
of  Harrison,  the  defendants  ought,  prima  facie,  to  have  seized  them.  Rice 
V.  Serjeant,  7  Mod.  37;  Bradley  v.  Wyndhavi,  1  Wils,44,  1  Ves.  245. 
But  it  is  said  that  they  ought  to  have  forborne  seizing  them,  when  they 
found  the  officer  of  the  late  sheriffs  in  possession.  I  think,  however, 
that  it  was  the  duty  of  the  defendants  to  ask  to  see  the  warrant;  and  if 
they  had  done  so,  they  would  have  found,  from  the  date  of  the  warrant, 
that  there  had  been  gross  delay,  and  then  they  would  have  been  bound 
to  treat  the  first  execution  as  fraudulent  and  void,  and  to  have  seized  the 
goods.  But  it  is  said  that  the  subsequent  act  of  the  plaintiff  has  des- 
troyed his  right  of  action  against  the  defendants.  But  the  plaintiff's 
right  of  action  against  them  became  complete  by  their  breach  of  duty 
in  not  seizing  when  they  ought  to  have  seized,  and  he  has  not  by  any 
subsequent  act  released  or  destroyed  such  right  of  action. 

HoLROYD  J.  I  think  the  plaintiff's  right  of  action,  if  he  had  one,  is 
not  destroyed.  The  goods  were  not  in  custody  of  the  law  at  the  time 
when  the  second  execution  issued.  They  were  originally  the  goods  of 
Harrison;  and  the  first  execution  by  INI 'Nab  being  wholly  null  and  void, 
they  remained  the  goods  of  Harrison,  notwithstanding  that  execution, 
and  were  liable  to  be  seized  by  the  plajntifi',  or  any  subsequent  execu- 
tion creditor. 

Rule  discharged. 


The  KING  v.  The  Justices  of  MONMOUTHSHIRE.— p.  137. 

Where,  upon  an  appeal  against  an  order  of  removal,  the  justices  at  sessions  were 
equally  divided,  and  made  an  order,  that  the  hearing  of  the  ajjpeal  sliould  be 
atljourned;  one  of  the  justices,  who  voted  in  favour  of  the  respondent  jiarish, 
being  a  rated  inhabitant  of  that  ])arisi\.  An  a])plication  for  a  certiorari  to  re- 
move the  order  of  sessions,  in  oi'dcr  tliat  it  and  tlie  ori,qiMal  order  of  removal 
might  be  quashed,  was  refused,  on  the  ground  that,  even  if  the  order  of  sessions 
were  erroneous,  this  Court  had  no  jurisdiction  to  review  it. 

A  RULE  nisi  had  been  obtained  for  a  certiorari  to  remove  into  this 
Court  an  order  of  two  justices  of  the  county  of  Monmouth,  for  the  re- 
moval of  James  Lewis,  his  wife  and  family,  from  the  town  (if  IJsk  to 
the  parish  of  Langwn  Ucha,  and  all  orders  of  sessions  made  I  hereon  or 
in  relation  thereto,  in  order  that  tlie  order  of  removal,  and  also  an  order 
of  sessions  for  adjourning  the  hearing  of  fbc  appeal  against  the  sani(^  order, 
might  be  quashed.  It  appeared  by  the  allidavits,  that,  on  tin;  hearing  of 
the  appeal  at  the  Kpi])hany  sessions  l.S2<S,  there  were  four  magistrates 
j)resent.  One  of  these  was  the  removing  justice,  and  a  rated  inhabitant 
for  the  relief  of  the  poor  of  the  town  of  Usk.  He  and  one  other  of  the 
magistrates  voted  for  the  respondents,  and  the  other  two  justices  for  the 
appellants.  The  chairman  announced  that  the  court  were  cfiualiy  di- 
vided. The  counsel  for  the  appellants  moved  the  court  to  (piash  the 
order  of  removal,  on  the  ground  that  the  respondents  had  not  made  out 
their  case.  But  the  court  made  an  order  that  the  appeal  should  be  ad- 
journed. 


168     Rex  v.  Jl'Stices  ofMonmouthshiue.  E.  T.  1828. 

liussell  Scrjt.  and  Watson  now  shewed  cause.  This  Court  is  not 
a-  court  of  error  to  review  the  judgment  of  the  court  of  quarter  ses- 
sions. It  is  true,  that,  in  Kex  v.  Giidridge,  5  B.  &  C.  459,  it  was 
held  that  a  magistrate,  a  rated  inhahitant  of  the  parish,  ought  not  to 
vote  on  the  determination  of  an  appeal  against  an  order  for  the  allowance 
of  overseers'  accounts,  or  even  on  a  question  as  to  granting  a  case  for  the 
opinion  of  this  Court.  But  in  that  case  this  Court  only  decided,  that, 
under  the  circumstances,  the  writ  of  certiorari  ought  not  to  have  issued 
for  removing  into  this  Court  an  order  of  sessions  made  under  such  cir- 
cumstances. In  Rex  v.  The  Juslices  of  Leicestershire,  1  M.  &  S.  442, 
the  Court  refused  to  grant  a  mandamus  to  the  justices  at  sessions  to  hear 
an  appeal  against  an  order  of  removal,  after  judgment  given  by  them  and 
entered  by  the  clerk  of  the  peace  for  quashing  the  order,  the  application 
being  made  on  the  ground  that  justices  at  sessions  were  divided  in  opin- 
ion, and  that  judgment  was  entered  by  mistake,  instead  of  an  adjourn- 
ment of  the  appeal.  But  Rex  v.  The  Justices  of  Momnouthshire,  4 
B.&  C.  S44,  is  precisely  in  point.  There,  on  appeal  against  an  order  of 
removal,  the  justices  at  sessions  were  equally  divided  in  opinion  as  to  a 
question  of  fact  on  which  the  settlement  of  the  pauper  depended.  The 
sessions  thinking  that  it  lay  on  the  respondent  parish  to  establish  their 
case  to  the  satisfaction  of  a  majority  of  the  court,  quashed  the  order  of 
removal.  The  sessions  having  decided  the  case,  this  Court  refused  to 
grant  a  mandamus,  on  the  ground  that  this  Court  was  not  a  court  of  error 
from  that  court;  that  it  might  compel  the  court  of  quarter  sessions  by 
mandamus  to  hear  and  decide  the  appeal,  but  when  they  had  so  deter- 
mined it,  this  Court  could  not  cdmpel  them  to  corr9ct  their  judgment  if 
it  appeared  to  be  erroneous. 

Campbell  and  Maule  contra.  It  must  be  conceded  that  this  Court 
is  not  a  court  of  error  to  review  the  decisions  of  the  court  of  quarter 
sessions;  but  here  the  court  of  quarter  sessions  have  made  the  order  of 
adjournment  without  having  any  jurisdiction  so  to  do.  There  were  two 
good  votes  in  favour  of  the  appellants,  and  only  one  good  vote  in  favour 
of  the  respondents.  The  vote  of  the  magistrate  who  was  interested  was 
a  nullity,  The  Parish  of  Great  Charte  v.  Kennington,  2  Str.  1173; 
Rex  V.  Yarpole,  4  T,  R.  71;  the  case  of  Foxam  Tything,  2  Salk.  607. 
And  if  that  be  so,  then  the  only  judgment  which  the  court  had  jurisdic- 
tion to  pronounce,  was,  that  the  order  of  removal  be  quashed. 

Lord  Tenterden  C.  J.  This  rule  must  be  discharged.  But  I  wish 
to  have  it  clearly  understood  that  in  doing  so  we  do  not  in  any  degree 
intend  to  sanction  a  magistrate's  voting  in  any  case  in  which  he  is  inter- 
ested. This  is  an  application  to  the  Court  to  quash  an  order  of  sessions 
made  for  adjourning  an  appeal,  on  the  ground  that  upon  the  question 
whether  the  order  of  removal  should  be  confirmed,  the  justices  were 
equally  divided  in  fact,  though  it  is  alleged  that,  in  point  of  law,  two 
were  for  quashing  the  order,  and  one  only  for  confirming  it;  because  it  is 
contended  that  the  vote  given  by  one  of  the  justices  for  confirming  the 
order  was  a  nullity,  and  therefore  the  sessions  ought  to  have  quashed  the 
order  of  removal,  and  not  to  have  adjourned  it.  The  late  decisions  es- 
tablish, however,  that  we  cannot  assume  to  ourselves  the  jurisdiction  of  a 
court  of  error,  and  revise  the  judgments  of  the  court  of  quarter  sessions. 
It  is  said  that  the  court  of  quarter  sessions,  under  the  circumstances,  had 
not  jurisdiction  to  make  the  order  of  adjournment.  It  is  clear  that  it 
had  jurisdiction  to  make  any  order  concerning  the  subject  matter  of  the 


8  Batinewall  &  Cresswell,  137.  169 

appeal,  and,  among  others,  the  order  that  the  hearing  of  the  appeal  should 
be  adjourned.  In  Rex  v.  Gudridge,  5  B.  &  C.  459,  the  rule  which  had 
been  obtained  was  not  to  review  the  order  of  the  court  of  quarter  ses- 
sions, but  to  quash  a  writ  of  certiorari  quia  improvide  emanavit.  The 
question  before  the  Court  in  that  case  was,  whether  that  writ  ought  to 
have  been  allowed  to  issue  to  remove  an  order  of  sessions  made  under 
circumstances  nearly  similar  to  those  in  this  case.  And  this  Court  thought 
that  the  writ  of  certiorari  ought  not  to  have  issued.  Here  a  judgment 
has  been  pronounced  by  the  court  of  quarter  sessions  relating  to  a  subject 
matter  over  which  that  court  had  jurisdiction;  and,  assuming  that  judg- 
ment to  be  erroneous,  I  think  we  have  not  jurisdiction,  as  a  court  of 
error,  to  review  it.     This  rule  must,  therefore,  be  discharged. 

Rule  discharged. 


BUSZ  ARD  and  Others,  Assignees  of  JONES  and  Another,  Bankrupts, 
V.  CAPEL  and  Another.— p.  141. 

It  was  stated  in  a  special  verdict,  that  by  an  indenture  A.  demised  to  B.,  all  that 
wharf  next  the  river  Thames,  described  by  abutments,  together  with  all  ways, 
paths,  passages,  easements,  profits,  commodities,  and  appurtenances  whatso- 
ever to  the  said  wharf  belonging;  and  that  by  the  indenture  the  exclusive  use 
of  the  land  of  the  river  Thames  opposite  to  and  in  front  of  the  wharf,  between 
high  and  low  water  mark,  as  well  when  covered  with  water  as  dry,  for  the  ac- 
commodation of  the  tenants  of  the  wharf,  was  demised  as  appurtenant  to  the 
wharf,  but  that  the  land  itself  between  high  and  low  water  mark  was  not  de- 
mised :  Held,  that  the  meaning  of  this  finding  either  was,  that  the  land  was  de- 
mised as  appurtenant  to  the  wharf,  and  then  it  would  be  a  finding  that  one  piece 
of  ground  was  appurtenant  to  another,  which  in  law  could  not  be;  or,  that  the 

i'  mere  use  of  the  land  passed  by  the  indenture,  and  that  was  a  mere  privilege  or 
easement,  out  of  which  rent  could  not  issue,  and  consequently,  that  the  lessor 
could  not  distrain,  for  rent  in  arrear,  barges,  the  ])roperty  of  R.,  lying  in  the 
space  between  high  and  low  water  mark,  and  attached  to  the  wharf  by  ropes. 

Trover  for  two  liarges;  first  count  on  the  possession  of  the  bank- 
rupt, second  count  on  the  possession  of  the  assignees.  Plea,  not  guilty. 
At  the  trial  before  Lord  Toilerden  C.  J.  at  the  London  sittings  after 
Trinity  term  1827,  the  jury  found  a  verdict  of  not  guilty  on  the  first 
count;  and  on  tlic  second  a  special  verdict,  stating,  as  to  the  griev- 
ances in  that  count  mentioned,  tiiat,  at  the  time  of  making  the  dis- 
tress thereinafter  mentioned,  VV.  R.  Jones  and  G.  Jones  had  be- 
come bankrupts,  and  the  plaintilTs  had  been  chosen  and  appointed 
their  assignees  ;  and  that  the  plaintiffs,  as  such  assignees,  before  and 
at  tlie  time  of  the  making  of  the  distress  thereinafter  mentioned, 
were  lawfully  possessed,  as  of  their  property  as  siicli  assignees,  of  the 
barges  tiiercinaftcr  mentioned  to  have;  been  taken  and  distrained  by  the 
dcfendnnts;  nnd  that  by  an  indenture  dated  tlie  Dili  of  March  ISIG,  and 
made  before  W.  R.  Jones  and  (i.  Jones,  or  cither  of  them,  beroine  bank- 
rupts, between  one  T.  Brown  of  tiie  one  part,  and  the  bankrupts  of  tho 
other  part,  Brown  demised,  leased,  &c.  to  the  bankrupts  all  Ihat  wharf, 
ground,  and  premises  next  the  river  Thames,  and  also  all  that  capital 
brick  built  warehouse  of  three  floors  erected  and  built  thereon,  abutting 
north  on  the  river  Thames,  east  on  premises  in  the  occupation  of  T. 
Flockton,  south  on  the  street  cartway  and  common  highway  leading 
from  Pickle  Herring  Stairs  to  Horsley  Down  Stairs,  and  west  on  the 
Five  Footway  or  Little  Wharf  for  landing  goods,  and  certain  otlicr  pre- 

vol..  XV.  21 


17©  RuszARD  V.  Capei-  £.  T.  1828. 

mises  in  tlio  indenture  more  particularly  mentioned,  together  with  free 
liberty  for  them  the  bankrupts,  their  executors,  &c.  during  that  demise, 
to  land  and  load  goods,  &c.  in  common  with  the  rest  of  the  tenants  of 
Brown,  at  the  said  Five  Footway  or  Little  Wharf  fronting  the  river 
Thames,  together  with  all  cellars,  ways,  paths,  passages,  lights,  ease- 
ments, profits,  commodities,  and  appurtenances  whatsoever  to  the  said 
wharf,  ground,  warehouse,  and  premises,  or  any  of  them,  belonging  or 
appertaining;  habendum,  the  same  premises,  with  their  and  every  of  their 
appurtenances,  unto  the  bankrupts,  their  executors,  &c.,  from  the  23d 
March  then  past  for  the  term  of  thirteen  years,  at  the  yearly  rent  of 
555/.,  by  equal  quarterly  payments,  payable  to  Brown,  and  after  his 
death  to  the  person  who  should  be  entitled  to  the  freehold  of  the  pre- 
mises. The  special  verdict  then  stated,  that  by  the  indenture  the  ex- 
clusive use  of  the  land  of  the  river  Thames  opposite  to  and  in  front  of 
the  said  wharf  ground  between  high  and  low  water  mark,  as  well  when 
covered  with  water  as  dry,  for  the  accommodation  of  the  tenants  of  the 
wharf,  was  demised  as  appurtenant  to  the  said  wharf  ground  and  pre- 
mises, but  that  the  land  itself  between  high  and  low  water  mark  was  not 
demised;  that  on  the  12th  of  November  1826,  the  sum  of  565/.  of  the 
rent  was  in  arrear  and  unpaid;  and  that  on  that  day,  and  at  the  time  of 
making  the  distress  thereinafter  mentioned,  the  two  barges,  the  property 
of  the  plaintiffs  as  such  assignees,  were  attached  by  ropes  head  and 
stern  to  the  wharf  ground  aforesaid,  and  were  lying  and  being  on  that 
part  of  the  river  Thames  opposite  to  and  in  front  of  the  said  wharf  ground 
and  premises,  and  between  high  and  low  water  mark,  the  exclusive  use 
of  which  was  demised  as  aforesaid  ;  that  the  defendants  on  the  said 
12th  November  as  the  bailiffs  of  the  person  who  was  then  entitled  to  the 
freehold  of  the  wharf  and  premises,  and  was  duly  authorized  by  law  to 
distrain  for  the  arrears,  seized  and  took  the  two  barges  as  a  distress  for 
the  arrears  of  rent,  and  shortly  afterwards  sold  and  disposed  thereof  to 
satisfy  such  arrears.  This  case  was  argued  on  a  former  day  in  this 
term  by 

Richards  for  the  plaintiff.  The  defendants  could  not  by  law  distrain 
the  barges  while  they  were  betvyeen  high  and  low  water  mark,  because 
a  distress  can  only  be  made  on  the  land  out  of  which  the  rent  issues,  and 
here  the  rent  did  not  issue  out  of  the  land  between  high  and  low  water 
mark.  That  land  was  not  demised,  but  only  an  exclusive  right  to  use 
it.  That  was  a  mere  easement.  In  Co.  Litt.  47.  a.  it  is  said,  "that  it 
appeareth  by  Littleton  that  a  rent  must  be  reserved  out  of  the  lands  or 
tenements  whereuntothe  lessor  may  have  resort  or  recourse  to  distrain, 
as  Littleton  here  also  saith;  and,  therefore,  a  rent  cannot  be  reserved  by 
a  common  person  out  of  any  incorporeal  inheritance,  as  advowsons, 
commons,  offices,  corodie,  mulcture  of  a  mill,  tithes  of  fairs,  markets, 
lilierties,  privileges,  franchises,  and  the  like.  But  if  the  lease  be  made 
of  them  by  deed  for  years,  it  may  be  good  by  way  of  contract  to  have 
an  action  of  debt,  but  distrain  the  lessor  cannot."  Here  the  land  be- 
tween high  and  low  water  mark  is  not  demised,  but  a  mere  right  to  use 
it.  That  is  a  privilege  or  easement,  and,  consequently,  no  rent  can  issue 
out  of  it.  The  11  G.  2.  c.  19.  s.  S.  enables  the  landlord  to  distrain  any 
cattle  feeding  upon  a  common  appurtenant  to  the  land  demised.  At 
common  law  such  cattle  could  not  be  distrained,  because  the  soil  of  the 
common  belonged  to  the  lord  of  the  fee;  and  the  lessor  of  the  land  (to 
which  the  right  of  common  is  appurtenant)  could  not,  therefore,  enter 


8  Barnewall  &  Cress  WELL,  141.       171 

on  the  common  land  to  distrain.  So,  in  this  case,  the  soil  of  the  land  be- 
tween high  and  low  water  mark  belongs  to  the  king.  The  lessor  of  the 
wharf,  therefore,  can  have  no  right  to  distrain  on  that  jland,  though  he 
may  have,  as  appurtenant  to  his  land,  an  exclusive  right  to  use  the  space 
between  high  and  low  water  mark.  There  are  cases  where  land  hav- 
ving  been  demised  for  a  term  of  years,  and  the  lessee  having  had  re- 
served to  him  a  right  of  using  part  of  the  demised  premises  after  the 
expiration  of  the  term,  his  crops  have  been  held  to  be  subject  to  distress 
so  long  as  they  continued  on  the  land,  as  in  Boraston  v.  Green,  1  H. 
Bl.  5,  and  Knight  v.  Benett,  3  Bing.  304.  But  in  those  cases  the  land 
itself  on  which  the  distress  was  made  was  originally  demised,  and  not 
the  mere  use  of  it,  as  in  this  case. 

Starr  contra.  The  exclusive  use  found  by  the  special  verdict  is  a 
certain  and  determinate  interest  or  profit,  in  contradistinction  to  a  pro- 
fit to  be  taken  in  an  uncertain  place,  or  to  a  mere  easement,  which  latter 
could  not  be  described  in  the  old  precedents  as  appendant  or  as  appur- 
tenant, Godley  v.  Frith,  Yelv.  159;  but  in  this  case  the  right  of  the 
lessee  between  high  and  low  water  mark  is  found  by  the  special  verdict 
to  be  appurtenant.  It  may  be  a  substantial  and  tangible  interest  where- 
to a  lessor  may  resort  to  distrain,  and  yet  be  appurtenant  to  land.  The 
technical  rule  is  only  that  land  shall  not  be  appurtenant  to  land.  In  Co. 
Litt.  121.  b.  it  is  said  that  prescription  doth  not  make  any  thing  ap- 
pendant or  appurtenant,  unless  the  thing  appendant  or  appurtenant 
agree  in  quality  and  nature  to  the  thing  whereunto  it  is  appendant  or 
appurtenant;  as  a  thing  corporeal  cannot  properly  be  appendant  to  a 
thing  corporeal,  nor  a  thing  incorporeal  to  a  thing  incorporeal.  Mr. 
Butler  in  his  note  to  this  passage,  after  adverting  to  some  examples  to 
shew  that  this  position  is  not  universally  true,  says,  "The  true  test 
seems  to  be  the  propriety  of  relation  between  the  principal  and  the  ad- 
junct, which  may  be  found  out  by  considering  whether  they  so  agree  in 
nature  and  quality  as  to  be  capable  of  union  without  any  incongruity. 
In  this  case  the  principal  is  the  wharf;  the  exclusive  right  to  use  the 
land  between  high  and  low  water  mark  is  the  adjunct.  Tliey  agree  in 
nature  and  quality,  so  as  to  be  capable  of  union  withoutany  incongruity; 
one,  therefore,  may  be  appurtenant  to  the  other,  and  yet  not  be  incor- 
poreal. 

But  assuming  this  to  be  an  incorporeal  interest,  the  same  remedies 
arc  applicable  to  the  recovery  of  it,  and  the  same  consequences  of  lavr 
attach  on  the  demise  of  it,  as  upon  that  of  the  cori)orc:il  principal.  It 
is  an  interest  for  the  recovery  of  which  an  assize  of  novel  disseisin  would 
lie  at  common  law.  That  is  a  writ  of  entry  wherein  A.  conij)I;iins  that 
B.  hath  disseised  him  of  his  freehold,  and  the  sheriff  is  to  cause  lluit 
tenement  to  be  rcseised,  and  twelve  men  to  view  that  tenement,  &c., 
Fitz  N.  B.  177.  Bracton,  in  his  chapter  on  the  Assize  of  Novel  Dis- 
seisin, lib.  iv.  fol.  ini,  says,  *' Locum  aulem  non  solum  habet  hiijus- 
modi  assisa  in  rebus  corporalibus  sicut  in /e/zcwe/i/i'.y  quibuscunque;  ve- 
rum  etiam  in  rebus  incnr])orulihu!i  sicut  in  servilulihns  ct  in  rcbita 
<]usn pertinent  rid  tenetncntnm  sicut  in  jure  pasccndi,  f.ilcandi,  fodicn- 
di  et  hnjiismodi."  And  again  in  fol.  170,  "In  quibus  casibiis  omnibus 
subvcnitur  disscysito  per  breve  de  ingrcssii  secundam  formas  infcrius  no- 
tandas,  tam  super  posscssionibus  rerum  corporaliinn,  quain  suj)cr  juribns 
scilicet  rebus  incorporalil)us  sicut  super  jure  pascendi  ct  hujusmodi 
utendi  fruendi."     Here  the  lessee  had   the  jus   utcmli,   for  he  had  the 


172  lirszAin.  V.  Cai'kl.  E.  T.  1828. 

exclusive  riglit  of  using  the  land  between  liigli  and  low  water  mark. 
Again,  wherever  a  view  could  be  had  oi  tenements  among  which  arc 
servitutcs,  an  assize  lay  for  the  recovery  of  the  rent,  and  even  a  dis- 
tress might  be  made  upon  a  servitus  for  the  rent  of  the  scrvitus,  provi- 
ded it  were  practicable,  Bracton,  lib.  iv.  fol.  ISl.  It  has  been  said  that 
assize  lay  in  tiiesc  instances  only  because  it  was  a  speedy  remedy;  but 
Bracton,  lib.  iv.  fol.  ISl,  says  that  it  lies  only  where  strictly  applicable; 
and,  therefore,  if  the  complainant  is  ignorant  of  or  cannot  describe  his 
tenement  either  in  quality*or  quantity,  or  its  local  situation,  the  writ  of 
assize  of  novel  disseisin  will  not  lie.  The  remedy  by  assize  of  novel  dis- 
seisin was  extended  by  the  statute  of  Westminster  2d.  I..ord  Coke,  in 
commenting  on  that  statute  in  2  Inst.  412,  observes  that  Bracton,  who 
wrote  before  the  making  of  that  act,  said  that  the  assize  lay  for  any  com- 
mon appurtenant  to  the  freehold,  as  for  common  of  pasture  or  of  turbary; 
and  Lord  Coke  then  says,  "that  in  the  reign  of  Henry  the  Third, 
which  was  before  the  making  of  that  act,  an  assize  did  lie  of  common  of 
piscary;  and  these  opinions  had  great  probability  of  reason,  yet  be- 
cause (as  hath  been  said)  there  was  no  writ  in  the  register  in  those  cases, 
therefore  before  this  act  no  writ  did  lie  by  the  general  opinion  of  the 
judges;  but  now  this  act  hath  cleared  the  question.  And  P?racton,  when 
he  mentions  the  writ  of  entry  ad  terminum  qui  pra^teriit,  lib.  iv.  fol. 
324,  asserts,  that  it  will  lie  for  common  of  pasture  dum  tamen  pastura 
fuerit  certa  et  designata  ad  certum  numerum  averiorum.  These  writs 
of  entry  therefore  are  applicable,  the  one  to  that  interest  in  land  stated 
in  the  special  verdict,  the  other  to  that  right  of  common  which  the  same 
interest  is  admitted  to  resemble. 

Secondly,  The  same  consequences  attach  upon  the  demise  of  it  as 
upon  that  of  the  corporeal  hereditament.  The  lessee  has  acknowledged 
under  his  hand  and  seal  that  this  appurtenant  is  part  of  the  premises  de- 
mised in  respect  of  which  the  rent  is  reserved.  The  power  of  distress 
is  incident  to  and  inseparable  from  rent  service,  and  to  that  power  there 
are  no  stricter  limits  than  the  following,  which  are  given  in  Fleta,  lib. 
ii.  c.  49.  "  In  qualibct  captione  tria  principaliter  requiruntur,  certus  lo- 
cus, certa  causa,  et  seisina  alicujus."  In  the  present  case  all  these  thiee 
requisites  concur.  Littleton,  sect.  58,  does  not  confine  the  right  of  dis- 
tress to  lands,  but  says,  "  If  the  lessor  reserve  to  him  a  yearly  rent  up- 
on such  lease,  he  may  chuse  for  to  distrain  for  the  rent  in  the  tenements 
letten."  Lord  Coke,  in  commenting  on  this  passage,  says,  that  the  rent 
must  be  reserved  out  of  the  lands  or  tenements  whcreunto  the  lessor  may 
have  resort  to  distrain.  The  reason  given  by  Lord  Coke,  therefore,  why 
the  rent  should  be  reserved  out  of  the  lands  and  tenements  is,  that  there 
should  be  a  certain  place  to  distrain  upon.  He  afterwards  proceeds  to 
say  that  a  rent  cannot  be  reserved  by  a  common  person  out  of  an  incor- 
poreal inheritance;  as  tithes,  &c.  ;  I)u<t  if  lease  be  made  of  them  by  deed 
for  years,  it  may  be  gooll  by  way  of  contract  to  have  an  action  of  debt, 
but  distrain  the  lessor  cannot."  This  dictum,  that  it  is  good  by  way  of 
contract  only,  is  at  variance  with  what  was  said  by  the  Court  in  Bally 
V.  IVells,  3  Wils.  25, where  tithes  were  held  to  be  such  an  estate  as  would 
create  a  privity  between  the  lessor  and  assignee,  so  as  to  make  the  latter 
liable  upon  a  covenant  running  with  the  tithes.  There  it  was  objected 
tithes  were  incorporeal,  and  could  not  support  a  covenant  by  the  lessee 
thereof  to  run  with  them,  so  as  to  bind  the  assignee.  But  the  Court,  in 
delivering  judgment,  say,  "  there  seems  to  be  no  difference  between  an 


8   BaUNEWALL  &  CliESSWELL,  141.  173 

inheritance  in  lands  and  tithes  as  to  this  matter.  Tithe  is  tlie  tentli  part 
of  the  profits  of  the  lands  ;  the  profit  of  the  land  is  the  land  itself;  tithes 
are  tangible  and  visible  ;  may  be  put  in  view  in  an  assize  ;  an  ejectment 
li^s  of  them  ;  a  precipe  quod  reddat  lies  of  a  portion  of  tithes  ;  a  war- 
ranty may  be  annexed  to  incorporeal  inheritances.  They  have  every 
property  of  an  inheritance  in  land  except  that  they  lie  in  grant,  and  not 
in  livery."  Those  observations  apply  obviously  to  the  nature  of  the 
interest  which  the  lessee  took  in  the  space  between  higli  and  low  water 
mark.  Again,  beasts  upon  the  common  might,  at  common  law,  be  dis- 
trained for  the  rent  of  the  common.  In  the  year-book  26  Hen.  8.  p.  5. 
this  case  is  stated,  ''In  replevin  defendant  avowed  that  plaintifTand  his 
ancestors,  &c.  had  used  to  have  common  in  certain  acres  of  the  defen- 
dant, for  which  rent  was  reserved  at  the  festival  of  Christmas,  which 
rent  was  in  arrear,  and  avowed  the  taking. — JNIervin.  Sir,  it  seems  to 
me  that  the  prescription  availeth  not,  for  he  prescribes  to  distrain  in  his 
own  soil,  which  would  be  inconvenient. — Fitzherbert.  It  is  a  good  pre- 
scription, and  may  have  a  lawful  beginning  :  the  soil  is  not  charged  with 
the  distress,  but  only  the  beasts.  Afterwards,  on  another  day,  Mervin 
moved  Englcfield  on  the  same  points,  who  said  as  Fitzherbert  had  said." 
In  Gray's  case,  5  Coke,  78.  S.  C.  Cro.  Eliz.  405,  it  was  resolved  that 
the  lord  might  distrain  cattle  for  the  rent  of  the  common  on  a  common, 
although  tliere  was  no  prescription  to  distrain.  In  the  Mayor  of  North- 
ampton's case,  1  Wils.  115,  Lee  C.  J.  seems  to  have  thought  that  the 
owner  of  the  soil  might  distrain  even  for  stallage,  provided  the  sum  were 
fixed.  These  authorities  shew  that  there  may  be  a  distress  for  rent  issu- 
ing out  of  an  interest  analogous  to  that  which  the  lessee  took  under  the 
indenture  in  the  space  between  high  and  low  watermark.  The  exclu- 
sive use  found  by  the  jury  was  inferred  from  those  acts  of  enjoyment  of 
which  this  soil  is  capable,  such  as  making  beds  for  the  barges,  clearing 
out  the  mud,  &c.  The  interest  of  the  tenant  may  be  likened  to  the  ves- 
tureof  land,  which  may  bedistrained  upon,  Co.  Litt.  47.  a.  ;  orto  those 
particular  rights  for  any  injury  to  which  trespass  will  lie,  as  a  right  to 
the  herbage  ;  or  a  piscary,  Co.  Litt.  4.  b.  Wilson  v.  Mackreth,  3  Burr. 
1824.  fVelch  v.  MycrSy  4  Campb.  368.  These  barges,  although  not  "in 
and  upon"  the  wharf  ground,  would  have  had  no  certain  local  habita- 
tion but  for  the  wharf  ground  to  which  they  were  attached.  If  these 
barges  were  lawfully  distrained,  when  the  privilege  of  being  so  attached 
only  was  demised  (as  the  Court  of  Common  Pleas  decided  in  this  very 
case,  4  Bingh.  137),  a  fortiori,  a  distress  of  Ihcm  is  lawful  when  in  the 
occupation  of  the  interest  stated  in  this  special  verdict.  Thev  occupied 
the  premises  demised  according  to  the  mode  of  occupation  of  which  they 
were  capable; 

Richards  in  reply.  The  soil  between  high  and  low  water  mark  did 
not  pass  by  the  indenture,  but  the  mere  riglit  to  use  it.  The  land  which 
did  pass  is  described  by  metes  and  hounds.  Coupling  the  words  of  the 
deed  with  the  finding  of  the  jury,  the  lessee  had  a  mere  easement  in  the 

soil  between  high  and  low  water  mark.  ^,  ,         ,, 

°  Lia'.aav.vttll. 

Lord  Tenterden  C.  .1.  It  is  difllcult  to  understand  what  is  really 
meant  by  that  part  of  the  finding  of  the  jury,  "  that  the  rxclusivc  use  of 
the  land  of  the  river  Thames  opposite  to  and  in  front  of  the  said  wharf 
ground  between  high  and  low  water  mark,  as  well  when  covered  with 
water  as  dry,  for  the  accommodation  of  the  tenants  of  the  wharf,  was  dc- 


174      Archh.  of  Canterbury  v,  Tappen.  E.  T.  1828. 

niisctl  as  appiirlciiant  to  the  said  wharf  ground  and  premises;  but  that 
the  land  itself  between  high  and  low  watermark  was  not  demised."  And 
it  is  dillicult  to  understand  how  the  exclusive  use  could  be  demised  and 
the  land  not ;  hut  in  either  case  the  distress  cannot  be  supported.  If  the 
meaning  of  this  finding  be  that  the  land  itself  was  demised  as  appurtenant 
to  the  wliarf,  that  would  be  a  finding  that  one  piece  of  land  was  appur- 
tenant to  another,  which,  in  point  of  law,  cannot  be.  If,  on  the  other 
liand,  the  meaning  be  that  the  use  and  enjoyment  of  this  land  passed  as 
appurtenant,  that  would  be  a  mere  privilege  or  easement,  and  the  rent 
would  not  issue  out  of  that ;  the  landlord,  therefore,  could  not  distrain 
there  for  rent  issuing  out  of  the  land  in  respect  of  which  the  easement  or 
privilege  had  its  existence.  That  is  understood  to  be  the  law  of  the  land, 
and  an  act  of  parliament  was  passed  to  remedy  this  inconvenience  as  far 
as  rights  of  common  were  concerned.  Taking  the  finding  of  the  jury 
in  either  sense,  the  defendant  had  no  right  to  distrain  on  the  premises  iii 
question,  and  the  judgment  of  the  Court  must  be  for  the  plaintiffs. 

Judgment  for  the  plaintiffs. 


The  Archbishop  of  CANTERBURY  v.  TAPPEN.— p.  151. 

An  administrator  is  not,  by  the  condition  of  the  bond,  given  in  pursuance  of  the 
statute  of  distributions,  22  and  23  Car.  2.  c.  10.,  bound  to  distribute  the  surplus 
of  the  intestate's  estate  after  payment  of  debts,  &c.,  until  a  decree  directing  him 
so  to  do  has  been  made  by  the  court  into  which  his  inventory  and  account  has 

'     been  exhibited. 

Debt  on  bond  dated  10th  May  1809.  The  defendant  craved  oyer  of 
the  bond,  by  which  he,  one  R.  E.,  and  Sir  T.  H.  Page  were  jointly  and 
severally  bound  to  the  plaintiff  in  the  sum  of  12,000/.  in  pursuance 
of  the  statute  of  distributions.  He  also  craved  oyer  of  the  condition, 
which  was,  thatSir  T.  H.  Page,  next  of  kin,  and  administrator  of  B.  W. 
deceased,  should  make  a  true  and  perfect  inventory  of  the  goods,  chat- 
tels, and  credits  of  the  deceased,  and  exhibit  the  same  into  the  registry 
of  the  prerogative  court  of  Canterbury,  on  or  before  the  last  day  of  No- 
vember then  next,  and  the  same  goods  and  chattels  should  well  and  truly 
administer  according  to  law.  And  further,  that  he  should  make,  or  cause 
to  be  made,  a  true  and  just  account  of  his  said  administration,  at  or  before 
the  last  day  of  May  1610;  and  all  the  rest  and  residue  of  the  said  goods, 
chattels,  and  credits  which  should  be  found  remaining  upon  the  said  ad- 
ministrator's accounts  (the  same  being  first  examined  and  allowed  of  by 
the  judge  or  judges  for  the  time  being  of  the  said  court),  should  deliver 
and  pay  unto  such  person  or  persons  respectively,  as  the  said  judge  or 
judges,  by  his  or  their  decree  or  sentence,  pursuant  to  the  true  intent 
and  meaning  of  an  act  of  parliament  (entitled  "An  act  for  the  better  set- 
tling of  intestates'  estates"),  should  limit  and  appoint.  And  that  if  any 
will  of  the  deceased  should  afterwards  be  exhibited  and  proved,  he 
would  deliver  the  said  letters  of  administration  into  the  said  court.  Plea, 
that  Sir  T.  H.  Page  did  make  and  exhibit  into  the  registry  of  the  prero- 
gative court  before  the  last  day  of  November  next  ensuing  the  day  of  the 
dateof  the  bond,  to  wit,  on,  &c.,  a  true  andperfect  inventory  ofthcgoods, 
chattels,  and  credits  of  the  deceased,  and  the  same  did  well  and  truly  ad- 
minister according  to  law;  and  did  make  a  true  and  just  account  of  his 


8  Barnewall  &  Cress  WELL,  151.  175 

said  administration  before  the  last  day  of  May  1810,  to  wit,  on,  &c.,  and 
that  the  judge  or  judges  for  the  time  being  of  the  said  court  have  not,  at 
any  time  hitherto,  by  his  or  their  decree  or  sentence,  pursuant  to  the 
true  intent  and  meaning  of  the  said  act  of  parliament  in  the  condition 
mentioned  or  otherwise,  limited  or  appointed  the  said  Sir  T,  H.  Page  to 
deliver  or  pay  all  or  any  of  the  goods,  &lc.  remaining  upon  the  said  ad- 
ministrator's accounts  unto  any  person  or  persons  whomsoever.  But  on 
the  contrary,  he  was  on,  Sic.  cited  to  appear  before  Sir  J.  N.,  commissa- 
ry of  the  said  court,  on,  &c.,  to  exhibit  cm  inventory  and  render  an  ac- 
count; that  he  did  appear,  and  such  proceedings  were  thereupon  had, 
that  on,  &c.  he  was  dismissed  from  all  further  observance  of  justice  in 
the  said  cause;  and  that  it  hath  not  at  any  time  hitherto  appeared  that 
there  was,  or  is,  any  will  of  the  deceased;  and  this  defendant  is  ready  to 
verify,  wherefore,  &c.  Second  plea  similar,  with  the  exception  that  the 
citation  and  other  proceedings  in  the  prerogative  court  were  omitted. 
The  replication  assigned  as  breaches,  first,  that  Sir  T.  H.  P.  did  not  ex- 
hibit a  true  and  perfect  inventory,  upon  which  issue  was  joined;  secondly, 
that  B.  W.  died  intestate,  leaving  Sir  T.  H.  P.,  A.  P.,  S.  0.,  &c.  her 
next  of  kin;  that  after  the  death  of  B.  VV.,  and  before  the  first  of  January 
1820,  out  of  certain  goods  and  chattels  which  came  to  his  hands.  Sir  T. 
H.  P.  paid  all  the  debts,  &c.  of  B.  W.,  and  that  10,000/.  remained  over 
and  above  in  the  hands  of  Sir  T.  H.  P.,  as  administrator,  which  ought, 
according  to  the  condition  of  the  bond,  to  have  been  well  and  truly  ad- 
ministered by  Sir  T.  H.  P.  according  to  law;  that  is  to  say,  in  manner 
following;  that  is  to  say,  (&c.);  yet  that  Sir  T.  H.  P.  hath  not  well  and 
truly  administered  the  said  last-mentioned  goods  and  chattels,  or  any 
part  thereof,  according  to  law,  or  paid  or  delivered  or  divided  the  same 
in  manner  aforesaid,  or  otherwise  howsoever.  Rejoinder,  that  the  judge 
or  judges  for  the  time  being  of  the  said  court  have  not  at  any  time  by  his 
or  their  decree  limited  and  appointed  Sir  T.  H.  P.  to  distribute  the  said 
last-mentioned  goodsand  chattels  in  the  manner  mentioned  in  the  breach, 
or  to  any  other  person  or  persons  whomsoever.    Demurrer  and  joinder. 

The  case  was  argued  on  a  former  day  in  this  term  by  Chilty  for  the 
plaintiff,  and  Plait  for  the  defendant;  Devey  v.  Edwarda  and  Tappcn, 
3  Add.  Ecc.  Rep.  GS,  and  The  Jlrchbiahop  of  Canterbury  v.  Ilowse, 
Cowpcr,  140,  were  cited  for  the  plaintifl",  and  The  Archbishop  of  Can- 
terbury v.  Willis,  1  Salk.  315,  and  Greensidc  v.  Benson,  3  Atk.  248, 
for  the  defendant;  and  now  the  judgment  of  the  Court  was  delivered  by 

Lord  Tenterden  C.  J.  Tliis  is  an  action  upon  a  bond  executed 
to  the  plaintifT,  on  the  grant  to  Sir  T.  H.  Page,  of  letters  of  adininistia- 
tion  to  the  effects  of  Blanch  Woilaston.  The  defendant  has  prayed  oyer 
of  the  bond  and  condition,  and  they  arc  set  forth  at  length  upon  the  re- 
cord. The  bond  is  dated  on  the  10th  of  May  1809,  and  by  liie  terms  of 
the  condition  the  bond  is  to  be  void, 

P'irst,  If  the  administrator  make  a  true  and  perfect  inventory  of  the 
goods,  &c.  of  the  intestate,  and  exhibit  the  same  into  the  registry  of  the 
prerogative  Court  on  or  before  the  lOih  day  of  November  then  next  en- 
suing; and, 

Seconflly,  If  he  well  and  truly  atlminister  according  lo  law  the  same 
goods,  &c.    and  all  other  goods,  &c.  tliat  shall  come  to  his  hands;  and, 

Thirdl}',  If  he  do  make  a  true  and  just  account  of  his  said  administra- 
tion on  or  before  the  last  day  of  May  1810;  and, 

Fourthly,  If  he  shall  deliver  and  pay  all  the  rest  and  residue  of  the 


170      Archu.  or  Caxtkwhuiiy  v.  Tappen.  E.  T.  1828. 

gooils,  &i'.  wliirli  shall  be  found  remaining  upon  his  accounts  unto  such 
]>ersons  respectively  as  the  judsj;e  of  the  court  shall  by  decree  or  sentence, 
jHirsiuuit  to  the  statute  22  &  23  Car.  2.  c.  10.  for  the  better  settling  of 
intestates'  estates,  limit  and  appoint;  and, 

Fifthly,  If  he  deliver  the  letters  of  administration  into  Court,  in  case 
anv  will  of  the  deceased  shall  appear. 

The  defendant  then  pleads  affirmatively,  that  the  administrator  per- 
formed the  first  three  branches  of  the  condition;  and  as  to  the  fourth 
branch,  that  the  judge  of  the  court  has  not,  by  decree  or  sentence,  limit- 
ed or  appointed  the  administrator  to  pay  the  residue  of  the  goods,  &c.,  or 
any  part  thereof,  which  were  found  remaining  upon  the  said  accounts  of 
the  administrator,  to  any  person  whatever;  but  that,  on  the  contrary,  the 
administrator  was  cited  to  appear  before  the  commissary  of  the  court  to 
exhibit  an  inventory,  render  an  account  of  his  administration,  and  see 
])orlions  allotted,  and  a  distribution  made  of  the  goods,  &c. ;  that  the  ad- 
ministrator did  appear  in  consequence  of  the  citation,  and  such  proceed- 
ings were  had  in  the  Court,  that  he  was  duly  dismissed  from  all  further 
observance  of  justice  in  the  cause. 

To  this  plea,  the  plaintiffhas  by  replication  alleged  and  assigned,  as  a 
breach  of  the  condition,  that  certain  persons  particularly  named  were 
tiie  only  next  of  kin  of  the  intestate  ;  that  the  administrator  paid  all  her 
debts ;  that  goods  of  great  value,  and  more  than  sufficient  to  pay  all  debts 
and  charges  of  the  administration,  came  to  the  hands  of  the  administra- 
tor, which  ought,  according  to  the  condition,  to  have  been  duly  ad- 
ministered by  him  according  to  law;  that  is  to  say,  in  manner  follow- 
ing, to  wit,  by  paying  certain  sums  specified  in  the  replication  to  the 
persons  before  mentioned  as  the  next  of  kin,  whereof  the  administrator 
had  notice  ;  that  a  reasonable  time  for  doing  this  has  elapsed,  yet  the  ad- 
ministrator has  not  administered  the  goods  according  to  law,  or  paid  or 
delivered  the  goods,  or  any  part  thereof,  to  the  persons  before  named, 
or  either  of  them,  but  neglected  and  refused  so  to  do,  contrary  to  the  ef- 
fect of  the  condition,  whereby  the  persons  before  named  have  lost  the 
use  and  profit  of  their  proportions  of  the  goods,  &c.  To  this  part  of  the 
replication  the  defendant  has  rejoined,  that  the  judge  of  the  court  has 
not,  by  decree  or  sentence,  limited  and  appointed  the  administrator  to 
deliver  or  p;iy  the  goods  to  the  persons  named,  or  any  other  person. 
And  upon  this  there  is  a  demurrer  by  the  plaintiff,  and  a  joinder  in  de- 
murrer. 

The  question  of  law,  therefore,  is,  Whether  the  neglect  or  refusal  of 
the  administrator  to  distribute  the  surplus  or  residue  of  the  effects  of  the 
intestate  among  the  next  of  kin,  according  to  the  statute  of  distributions, 
without  the  previous  decree  or  sentence  of  the  court,  be  a  breach  of  the 
condition  of  the  bond? 

The  question  is  not,  Whether  such  a  neglect  or  refusal  be  a  breach  of 
the  duty  of  the  administrator,  but  whether  it  be  a  breach  of  the  condition 
of  the  bond?  And  we  are  all  of  opinion  that  it  is  not.  Tiie  question 
docs  not  appear  to  have  been  directly  decided  in  any  court.  According 
to  the  report  of  the  proceedings  before  Sir  i/o/m  yVic/zo/,  3  Add.  Rep.  CS, 
on  the  application  to  allow  the  bond  to  be  put  in  suit,  that  very  learned 
judge  appears  to  have  thought,  that  this  neglect  might  be  a  breach  of  the 
condition,  but  his  attention  was  not  particularly  directed  to  this  point ; 
the  great  contest  before  him  being,  whether  the  sureties  ought  to  be 
cliarged  under  the  particular  circumstances  that  had  taken  place  ;  and  it 


8  Barnewall  &  Cresswell,  151.  177 

is  obvious,  from  some  parts  of  his  judgment,  that  he  would  have  thought 
it  right  to  allow  the  next  of  kin  to  try  this  or  any  other  doubtful  questioti 
in  a  court  of  law,  by  an  action  on  the  bond,  which  could  not  be  brought 
Without  the  permission  of  the  court. 

This  form  of  an  administration-bond  is  given  by  the  statute  22  Car.  2. 
c.  10.,  the  first  statute  which  ordains  the  distribution  of  the  effects  of  an 
intestate  among  the  next  of  kin.  And  the  bond  is  obviously  intended  to 
secure  a  performance  of  what  the  statute  ordains.  We  should,  therefore, 
examine  the  statute,  and  see  what  it  ordains,  in  order  to  come  at  a  right 
construction  of  the  bond,  and  the  terms  and  meaning  of  the  condition. 

From  the  form  of  the  replication,  it  appears  that  the  plaintiff  insists 
(and  the  argument  on  his  part  was  to  this  effect),  that  an  administrator 
cannot  be  said  well  and  truly  to  have  administered  the  goods  within  the 
meaning  of  the  condition,  unless  he  has  paid  their  distributive  shares  to 
the  next  of  kin.  The  clause  in  the  condition,  by  which  he  is  required 
thus  to  administer,  precedes  the  clause  by  which  he  is  required  to  make 
a  true  account  of  his  said  administration,  and  this,  also,  precedes  the 
clause  by  which  he  is  required  to  deliver  and  pay  the  residue  which 
shall  appear  upon  his  account  to  such  persons  as  the  court  shall,  according 
to  the  statute,  appoint.  Let  us,  then,  see  how  the  order  and  course  of 
proceeding,  thus  marked  out  in  the  condition  of  the  bond,  agrees  with 
the  statute. 

Now  the  statute  first  requires  all  ordinaries,  as  well  the  judges  of  the 
prerogative  courts  of  Canterbury  and  York  as  all  other  ordinaries  and 
ecclesiastical  judges  having  power  to  grant  administration,  to  take  bonds 
with  sureties  in  the  form  afterwards  set  forth.  It  then  enacts,  that  such 
bonds  shall  be  good,  and  that  the  said  ordinaries  and  judges  may  pro- 
ceed and  call  administrators  to  account  touching  the  goods,  and,  upon 
hearing  and  due  consideration,  order  and  make  just  and  equal  distribu- 
tion of  what  remaineth  clear  (after  debts  and  charges  paid)  among  the 
wife,  children,  &c.  according  to  the  laws  in  such  cases,  and  the  rules  and 
limitations  thereinafter  set  down  ;  and  the  same  distribution  to  decree 
and  settle  and  compel  the  administrators  to  observe  and  pay  the  same  by 
the  due  course  of  his  Majesty's  ecclesiastical  laws.  The  statute  then  enacts 
fscction  5.),  that  all  ordinaries  and  every  other  person  who  by  this  act 
is  enabled  to  make  distribution  of  the  surplus,  shall  distribute  the  whole 
surplus  in  manner  following  ;  and  then  mentions  the  different  degrees  of 
kindred  and  persons  to  participate  in  different  cases,  and  their  shares; 
and  then,  to  the  cm(\  that  a  due  regard  may  be  had  to  creditors,  it  en- 
acts that  no  distribution  shall  be  made  until  a  year  after  the  death  of  the 
intestate,  and  that  every  one  to  whom  distribution  shall  be  made  shall 
give  bond,  with  suretins,  in  such  courts,  to  repay  to  the  administrator  a 
rateable  part  of  debts  that  may  afterwards  appear,  and  of  the  costs  of  suit 
and  charges  that  he  may  be  put  to  by  reason  of  such  debts. 

The  vv(jrd  person  in  the  fifth  section  of  the  statute  evidently  means 
judge  ;  and  from  this  view  of  the  statute,  it  appears  that  tlu;  ordinary  or 
judge  is  to  make  the  distribution  among  the  persons  entitled,  and  that 
the  arlminisfrator  is  to  pay  according  to  the  sentence  of  the  ordinary,  so 
that  the  sentence  of  the  ordinary  is  to  precede  the  payment.  And  this 
may  in  many  cases  be  necessary  for  the  information  and  protection  of 
the  administrator,  who,  where  the  claimants  are  numerous  and  remote 
in  kindred  from  the  intestate,  may  not  know  with  certainly  what  par- 
ticular persons  are  entitled,  or  in  what  ])roportions,  and  may,  if  he  pays 

VOL.    XV.  2J 


178  NoTLEY  V.  Buck.  E.  T.  1828. 

to  a  person  not  entitled,  be  obliged  to  pay  over  again  to  the  person  le- 
gally entitled.  And  if  the  administrator  has  a  right  to  have  the  sentence 
of  the  court  before  he  j^ays,  then,  inasmuch  as  such  sentence  is  only  to 
be  pronounced  upon  the  residue  of  the  effects,  and  after  the  administra- 
tor has  furnished  an  account  of  his  said  administration  (which  is  the 
language  of  the  condition),  the  administration  thus  referred  to  cannot  be 
an  administration  comprising  a  distribution  of  the  effects  among  the  next 
of  kin  ;  and,  consequently,  the  preceding  words  offhe  condition  to 
which  the  reference  is  thus  made,  that  is,  the  words  <*well  and  truly  ad- 
minister the  goods  according  to  law,"  cannot  be  understood  of  an  admi- 
nistration comprising  a  distribution  among  the  next  of  kin.  It  is  true 
that  where  an  administrator  intends  to  act  faithfully,  and  the  claims  of 
the  next  of  kin  can  be,  as  in  general  they  may  be,  ascertained  without 
difficulty,  he  will  not  put  them  to  the  expence  and  delay  of  calling  for 
his  account,  and  obtaining  the  sentence  of  a  court ;  and  therefore  it  may 
well  be  said  that  it  is  his  duty  to  make  the  distribution,  although  it  can- 
not be  said  that  a  forfeiture  of  the  bond  is  incurred  if  this  be  not  done. 

This  construction  of  the  bond  agrees  with  the  opinions  expressed  by 
Lord  Chief  Justice  Holi  and  by  Lord  Hardwicke.  If  the  words,  well 
and  truly  administer  according  to  law,  import  a  distribution  of  the  residue 
among  the  next  of  kin,  they  must,  a  fortiori,  import  a  payment  of  debts 
out  of  the  proceeds  of  the  effects.  But  in  the  case  of  the  Archbishop  of 
Canterbury  \.  Willis ,  1  Salk.  315,  Holt  C.  J.  says,  "Whereas  by  the 
words  of  the  condition  he  is  to  administer  well  and  truly,  that  shall  be 
construed  in  bringing  in  his  account,  and  not  in  paying  the  debts  of  the 
intestate;  and,  therefore,  a  creditor  shall  not  take  an  assignment  of  the 
bond  and  sue  it,  and  assign  for  breach  the  nonpayment  of  a  debt  to  him." 
And  in  Greenside  v.  Benson  and  Others,  3  Atk.  248,  which  was  a 
suit  arising  out  of  an  action  at  law  on  a  bond,  in  which  the  breach  assign- 
ed was  the  not  bringing  in  a  true  and  perfect  inventory,  Lord  Hardwicke 
says, ''  What  the  counsel  for  the  plaintiff  aim  at  would  have  been  right, 
supposing  the  ordinary  had  assigned  for  breach  the  nonpayment  of  the 
creditor's  debts." 

For  these  reasons,  and  upon  these  authorities,  we  think  the  breach 
to  which  the  demurrer  applies  is  not  well  assigned,  and  that  the  judg- 
ment must  be  given  for  the  defendant. 

Judgment  for  the  defendant. 


NOTLEY  and  Others,  Assignees  of  the  Estate  and  Effects  of  ELIAS 
JARMAN,  Bankrupt,  v.  BUCK,  Esquire.— p.  160. 

Where  a  creditor  obtained  judgment  by  nil  dicit  against  a  trader  and  thereupon 
issued  a  fi.  fa.,  under  which  the  sheriff  seized  the  goods  of  the  trader,  who  af- 
terwards, and  before  the  goods  were  sold,  committed  an  act  of  bankruptcy,  upon 
■which  a  commission  issued,  and  he  was  duly  declared  a  bankrupt,  of  which  the 
sheriff  had  notice,  but  nevertheless  sold  the  goods,  and  paid  over  the  proceeds 
to  the  execution-creditor:  Held,  that  he  was  not  justified  in  paying  over  the 
money,  and  was  liable  to  be  sued  for  it  by  the  assignees,  in  an  action  for  money 
had  and  received. 

Quxre,  Whether  the  sheriff  was  justified  in  selling  the  goods  after  notice  of  the 
bankruptcy? 


8  Barnewall  &  Cresswell,  166.  179 

COLVIN  and  Others  v.  NEWBERRY  and  BENSON.— p.  166. 

Where  the  owner  of  a  ship,  by  an  instrument  called  a  charter-party,  appointed  G. 
B.  to  the  command,  and  agreed  that  (the  ship  being  tight,  &c.  and  manned  with 
thirty-five  men)  G.  B.  should  be  at  liberty  to  receive  on  board  a  cargo  of  law- 
ful goods  (reserving  100  tons  to  be  laden  for  account  of  the  owner),  and  proceed 
therewith  to  Calcutta,  and  there  re-load  the  ship  with  a  cargo  of  East  India 
produce,  and  return  therewith  to  London,  and  upon  her  arrival  there  and  dis- 
charge, the  intended  voyage  and  service  should  end.  And  the  owner  further 
agreed,  that  the  complement  of  thirty-five  men  should,  if  possible,  be  kept  up; 
that  he  would  supply  the  ship  with  stores,  and  that  she  might  be  retained  in  the 
said  service  twelve  months,  or  so  much  longer  as  was  necessary  to  complete 
the  voyage.  In  consideration  of  which  G.B.  agreed  to  take  the  command,  and 
receive  the  ship  into  his  service  for  twelve  months  certain,  and  such  longer 
time  as  might  be  necessary  to  complete  the  voyage,  and  pay  to  the  owner  for 
the  use  and  hire  of  the  ship  after  the  rate  of  25«.  per  ton  per  month,  of  which 
1000/.  was  to  be  paid  on  the  execution  of  the  charter-party,  and  2000/.  by  two 
approved  bills  on  Calcutta,  one  of  which  was  to  be  payable  one  month,  and  the 
other  two  months  after  her  arrival  there:  the  residue  to  be  paid  or  secured  to 
the  satisfaction  of  the  owner  on  the  arrival  of  the  ship  at  London,  and  previous 
to  commencing  the  discharge  of  her  homeward  cargo.  (Certain  other  stipula- 
tions for  payment  of  freiglit,  if  the  ship  were  detained  in  India,  were  then 
made.)  And  it  was  further  agreed,  that  G.  B.  should  remit  all  freight-bills 
for  the  homeward  cargo  to  B.  B.  and  Co.  in  London,  who  should  hold  them 
as  joint  trustees  for  the  owner  and  G.  B. ;  that  they  should  first  be  applied  to 
payment  of  the  balance  of  freight  due  from  G.  B.,  and  the  surplus,  if  any,  be 
handed  over  to  him.  It  was  then  provided,  that  the  owner  should  have  an 
agent  on  board,  who  was  to  have  the  sole  management  of  the  ship's  stores,  and 
power  to  displace  G.  B.  for  breach  of  any  covenant  in  the  charter-party,  and 
appoint  another  commander.  C.  and  Co.  in  Calcutta,  having  knowledge  of 
this  instrument,  shipped  goods  on  board  the  vessel  for  London,  which  were 
never  delivered  there:  Held,  that  they  might  recover  against  the  owner,  not- 
withstanding the  agreement  between  him  and  G.  B.,  for  that  it  was  in  the 
nature  of  a  special  appointment  of  the  latter  to  the  command,  and  was  not  a 
charter  of  the  vessel  to  him. 

Case  ajiijainst  the  defendants,  as  the  owners  of  the  ship  Benson,  for 
the  loss  of  goods,  shipped  by  the  jjlaintiffs  in  India  to  be  conveyed  to 
England.  The  first  count  of  the  declaration  alleged,  that  the  defendants, 
before  and  on  the  Ilth  day  of  March  1817,  were  owners  of  the  Benson, 
whereof  one  George  Bethain  then  was  master,  and  which  ship  or  vessel 
was  then  riding  at  anchor  in  parts  beyond  the  seas,  to  wit,  in  the  river 
Ilooghly,  in  the  East  Indies,  and  bound  on  a  voyage  from  thence  to  the 
port  of  London;  and  that  the  defeiulants  so  being  owners  of  the  ship  or 
vessel  as  aforesaid,  the  plaintiffs  heretofore,  to  wil,  on,  &c.,  in  the  river 
Ilooghly  aforesaid,  shipped  and  loaded,  and  caused  to  be  shipped  and 
loaded,  in  and  on  board  of  the  said  ship  or  vessel,  whereof  the  said 
Oeorge  Betham  then  was  master,  and  which  said  shi|)  or  vessel  was  (hen 
riding  at  anchor  in  the  river  Ilooghly  aforesaid,  divers  goods  and  mer- 
chandizes, to  wit,  2171  hags  of  sugar,  and  IfJl  chests  of  indigo  of  them 
the  plaintiffs,  then  being  in  good  order  and  well  conditioned,  and  of  a 
large  value,  to  wit,  of  the  value  of  20,000/.  of  lawful  money  of  (Jreat 
Britain,  to  be  taken  care  of,  and  safely  and  securely  carried  and  convey- 
ed in  and  on  board  of  the  said  ship  or  vessel  from  the  river  Ilooghly 
aforesaid  to  the  port  of  London  aforesaid;  and  there,  to  wit,  at  the 
port  of  London  aforesaid,  to  be  safcl}'  anil  securely  delivered  in  the  like 
good  order  and  well  conditioned,  to  certain  |)ersons,  commonly  called 
and  known  by  the  names,  and  ifsing  the  style  and  fnmof  Messrs.  Bazelt, 


180  CoLViN  v.  Newuerrv.  E.  T.  1828. 

Farquliar,  Crawford,  and  Company,  or  to  their  assigns,  (the  act  of  God, 
the  King's  enemies,  fire,  and  all  and  every  other  dangers  and  accidents 
of  the  seas,  rivers,  and  navigation  of  whatever  nature  and  kind  soever 
excepted),  for  certain  freight  and  reward,  payable  by  bills  in  that  behalf: 
and,  although  the  said  goods  and  merchandizes  were  then  and  there  had 
and  received  by  the  said  George  Betliam,  so  being  master  of  the  said 
ship  or  vessel  as  aforesaid,  in  and  on  board  of  the  said  ship  or  vessel  in 
the  river  Hooghly  aforesaid,  to  be  carried,  conveyed,  and  delivered  as 
aforesaid;  yet  the  defendants,  so  being  owners  of  the  said  ship  or  vessel 
as  aforesaid,  not  regarding  their  duty  as  such  owners,  but  neglecting 
the  same,  and  contriving,  and  wrongfully  and  unjustly  intending  to 
injure  the  plaintifl's  in  this  behalf,  did  not,  nor  would,  take  care  of,  and 
safely  or  securely  carry  or  convey  the  said  goods  and  merchandizes,  or 
cause  the  same  to  be  carried  and  conveyed  in  or  on  board  of  the  said  ship 
or  vessel,  or  otherwise,  from  the  river  Hooghly  aforesaid  to  the  port  of 
London  aforesaid,  nor  there,  to  wit,  at  the  port  of  London  aforesaid, 
safely  or  securely  deliver^the  same,  or  cause  the  same  to  be  delivered  to 
Messrs.  Bazett,  Farquhar,  Crawford,  and  Company,  or  to  their  assigns, 
although  the  defendants  were  not  prevented  from  so  doing  by  the  act  of 
God,  the  King's  enemies,  fire,  or  other  damages  or  accidents  of  the  seas, 
rivers,  or  navigation  of  any  nature  or  kind  soever;  but,  on  the  contrary 
thereof,  they,  the  defendants,  so  being  owners  of  the  said  ship  or  vessel 
as  aforesaid,  so  improperly  behaved  and  conducted  themselves  with 
respect  to  the  said  goods  and  merchandizes,  that  by  and  through  the  mere 
carelessness,  negligence,  misconduct,  and  default  of  the  defendants,  and 
their  servants,  in  this  behalf,  a  great  part  of  the  said  goods  and  mer- 
chandizes, being  of  great  value,  to  wit,  of  the  value  of  10,000/.  of  the 
like  lawful  money,  became  and  was  wholly  lost  to  the  plaintiffs;  and, 
also,  thereby  the  residue  of  the  said  goods  and  merchandizes,  being  of 
great  value,  to  wit,  of  the  value  of  10,000/.  of  like  lawful  money,  be- 
came and  was  greatly  damaged,  lessened  in  value,  and  spoiled,  and  the 
plaintiffs  lost  and  were  deprived  of  divers  great  gains  and  profits  which 
might  and  would  otherwise  have  arisen  and  accrued  to  them  from  the 
sale  thereof,  to  wit,  at  London  aforesaid.  Plea,  not  guilty.  At  the 
trial  before  Lord  Tenterden  C.  J.,  at  the  London  sittings  after  Michael- 
mas term,  1826,  a  special  verdict  was  found  as  to  the  promises  in  the  first 
count  of  the  declaration  mentioned,  in  substance  as  follows.  On  the  11th 
IVlarcli,  in  the  year  of  our  Lord  1817,  the  plaintiffs  shipped  on  board 
the  ship  Benson,  near  Calcutta,  in  the  East  Indies,  then  riding  at  anchor 
in  the  river  Hooghly,  2171  bags  of  sugar,  and  191  chests  of  indigo,  then 
being  in  good  oixler  and  well  conditioned,  for  which  the  following  bill  of 
lading  was  signed  by  George  Betham,  then  being  the  master  of  the  said 
ship,  under  the  circumstances  hereinafter  mentioned:  *'  Shipped  by  the 
grace  of  God,  in  good  order  and  well  conditioned,  by  Messrs.  Colvins, 
I3azett,and  Company,  in  and  upon  the  good  ship  called  the  Benson,  where- 
of ismaster,  under  God,  for  this  present  voyage,  George  Betham,  and  now 
riding  at  anchor  in  the  river  Hooghly,  and  by  God's  grace  bound  for 
London,  to  say,  2171  bags  of  sugar,  and  191  chests  of  indigo,  being 
marked  and  numbered  as  in  the  margin,  and  are  to  be  delivered  in  the 
like  good  order,  and  well  conditioned,  at  the  aforesaid  port  of  London, 
the  act  of  God,  the  King's  enemies,  fire,  and  all  and  every  other  dan- 
gers and  accidents  of  the  seas,  rivers,  and  navigation  of  whatever  nature 
and  kind  soever  excepted;  unto  INIcssrs.  Bazett,  Farquhar,  Crawford,  and 


8  BaRNEWALL  &  CllESSWELL,   166.  181 

Company,  or  to  their  assigns;  freight  for  the  said  goods  being  paid  by- 
bills."  G.  Betham  received  the  said  goods  on  board  the  said  ship  in 
the  river  Hooghly,  to  be  carried  and  conveyed  according  to  the  bill  of 
lading.  At  the  time  of  the  said  goods  being  so  shipped  and  received, 
and  the  said  bill  of  lading  signed,  and  before  that  time,  the  defendants 
wjre  the  owners  of  the  said  ship,  and  before  the  said  ship  sailed  to  the 
Eist  Indies,  and  whilst  they  were  such  owners,  the  following  charter- 
party,  bearing  date  the  7th  day  of  June,  in  the  year  of  our  Lord  1816, 
was  executed  by  the  defendant,  Thomas  Starling  Benson,  who  was  then 
the  managing  owner  of  the  ship,  and  acting  on  behalf  of  himself  and  the 
other  owner  of  the  ship  on  the  one  part,  and  G.  Betham,  of  the  other 
part,  for  the  said  ship  Benson. 

<'  This  charter-party  of  affreightment,  made  and  concluded  in  London 
the  7th  day  of  June,  in  the  year  of  our  Lord  1816,  between  Thomas 
Starling  Benson,  of  the  city  of  London,  part  owner  of  the  good  ship  or 
vessel  called  the  Benson,  of  573  tons  measurement,  or  thereabouts,  now 
lying  in  the  port  of  London,  of  the  one  part;  and  George  Betham  of  the 
city  of  London,  merchant  and  mariner,  freighter  of  the  said  ship,  of  the 
other  part;  witnesseth,  that  the  said  owner,  for  the  considerations  here- 
inafter mentioned,  doth  hereby  promise  and  agree  to  and  with  George 
Betham,  his  executors,  administrators,  and  assigns,  that  he  G.  Betham 
shall  have,  and  he  is  hereby  accordingly  appointed  to,  the  command  of 
the  said  ship,  but  with  such  restrictions  as  hereinafter  mentioned,  and 
subject  to  the  proviso  or  condition  hereinafter  contained  respectiiig  the 
appointment  of  an  agent  on  board  the  said  ship  on  the  part  of  the  said 
owners.  And  the  said  ship  being  tight,  staunch,  and  substantial,  and 
every  way  properly  fitted,  victualled,  and  provided,  as  is  usual  for  ves- 
sels in  the  merchant's  service,  and  for  the  voyage  and  service  herein- 
after mentioned,  and  being  also  manned  with  thirty-five  men  and  boys, 
the  said  commander  included,  he  the  said  George  Betham  shall  be  at 
liberty,  and  he  is  hereby  allowed  and  permitted  to  receive,  take,  and 
load  on  board  the  said  ship,  in  the  port  of  London,  all  such  lawful  goods, 
wares,  or  merchandize  as  he  may  think  proper  to  ship,  not  exceeding  in 
the  whole  what  the  said  ship  can  reasonably  stow  and  carry  over  and 
above  her  stores,  tackle,  apparel,  and  provisions,  and  reserving  sulTicient 
room  in  the  said  ship  for  100  tons  of  goods  to  be  laden  by  or  for  account 
of  the  said  owner  as  hereinafter  is  mentioned.  And  the  said  ship  being 
so  laden,  he  G.  Betham  shall  and  will  set  sail  therewith  and  proceed  to 
Calcutta  in  the  East  Indies,  with  liberty  to  touch  at  Madeira  and  Ma- 
dras in  her  outward  passage;  and  being  arrived  at  Calcutta  aforesaid,  shall 
and  will  unload  the  said  outward  cargo,  and  reload  the  said  ship  with  a 
cargo  of  East  India  produce,  and  return  with  the  same  to  the  port  of 
London,  and  upon  her  arrival  there,  and  being  finally  discharged  of  her 
cargo,  and  cleared  by  the  revenue  ollicers,  the  said  intended  voyage  and 
service  is  to  end  and  be  completed,  the  act  of  God,  the  King's  enemies, 
restraint  of  princes  and  rulers,  fire,  and  all  and  every  the  dangers  and 
accidents  of  the  seas,  rivers,  and  navigation  of  what  nature  or  kind  so- 
ever excepted.  And  the  said  owner  doth  hereby  further  promise  and 
agree  to  and  with  (J.  Betham,  his  executors,  &:c.  that  in  rase  any  of  the 
aforesaid  complement  of  thirty-five  men  and  boys  shall  happen  to  die, 
or  desert,  or  leave  the  said  ship  during  the  said  infcndcd  voyage  and 
service,  so  that  the  number  shall  bo  reduced  below  thirty-two,  that  then 
and  in  every  such  event  happening,  the  aforesaid  number  of  thirty-two 


182  CoLviN  V.  Newberry.  E.  T.  1828. 

shall,  if  practicable,  be  kej)!  and  made  up  at  the  expense  of  the  said 
owner.  Ami  further,  that  tlie  said  ship  shall  at  all  times  durmg  her 
said  intended  voyage  and  service  be  furnished  and  provided  with  pro- 
per and  sullicient  stores,  provisions,  and  other  necessary  articles,  and 
that  tlie  said  ship  shall,  if  required,  be  kept  and  continued  in  the  ser- 
vice aforesaid  for  and  during  the  period  of  twelve  calendar  months,  to 
be  accounted  from  the  twelfth  day  of  the  present  month  of  June,  and 
for  and  during  such  longer  time  or  term  as  may  be  necessary  to  com- 
])lete  her  aforesaid  voyage,  and  until  her  return  to  the  port  of  London, 
being  finally  discharged  of  her  lioineward  cargo,  and  cleared  by  the 
revenue  ollicers.  And  the  said  owner  doth  also  promise  and  agree  that 
tlie  said  ship  shall,  previous  to  her  departure  from  the  port  of  London 
on  her  above-mentioned  voyage,  be  furnished  and  provided  with  good 
water  casks,  capable  of  containing  eighteen  tons  of  water,  and  the 
said  owner  doth  also  engage  to  provide  the  said  ship  with  coals  and 
wood  for  cooking  and  dressing  the  passengers'  provisions,  for  which  the 
said  freighter  is  to  pay  or  allow  unto  the  said  owner,  at  and  after  the 
rate  of  fourteen  pence  for  every  passenger  or  servant  per  lunar  month, 
and  so  in  proportion  for  a  less  period.  In  consideration  whereof,  and 
of  every  thing  above  mentioned,  he,  G.  Betham,  doth  hereby  promise 
and  agree  to  and  with  the  said  Thomas  Starling  Benson,  in  manner  and 
form  following,  that  is  to  say,  that  he,  G.  Betham,  shall  and  will  take 
upon  himself  the  command  of  the  said  ship  for  and  during  her  said  in- 
tended voyage,  and  until  her  return  to  the  port  of  London,  and  shall  and 
will  navigate  her  to  the  best  and  utmost  of  his  skill  and  ability;  and, 
also,  that  he,  G.  Betham,  shall  and  will  accept,  receive,  and  take  the 
said  ship  into  his  service  for  and  during  the  term  or  space  of  twelve  cal- 
endar months  certain,  to  commence  and  be  accounted  from  the  12th  day 
of  the  present  month  of  June,  and  for  and  during  such  longer  time  or 
term,  if  any,  as  may  be  necessary  to  complete  her  said  intended  voyage, 
and  until  her  return  to  and  final  clearance  in  the  port  of  London  afore- 
said. And,  further,  that  he  shall  and  will  well  and  truly  pay  or  cause 
to  be  paid  unto  the  said  owner  freight  for  the  use  or  hire  of  the  said 
ship,  at  arid  after  the  rate  of  25s.  per  ton,  register  measurement  of  the 
said  ship  per  calendar  month,  for  and  during  the  aforesaid  term  of  twelve 
calendar  months  certain,  and  for  and  during  such  longer  time  or  term, 
if  any,  as  may  be  necessary  to  complete  her  said  intended  voyage,  and 
until  her  return  to  the  port  of  London,  and  being  finally  discharged  of 
her  homeward  cargo,  and  cleared  by  the  revenue  officers,  or  up  to  the 
day  of  her  being  lost,  captured,  or  last  seen  or  heard  of;  such  freight  to 
be  paid  in  manner  following:  that  is  to  say,  the  sum  of  1000/.,  part 
thereof,  at  or  before  the  execution  of  these  presents;  the  sum  of  2000/., 
further  part  thereof,  by  approved  bill  or  bills  to  be  drawn  in  London 
upon  Calcutta,  in  favour  of  the  said  owner,  payable,  as  to  one  moiety 
thereof,  at  one  calendar  month,  and  as  to  the  other  moiety  thereof  at 
two  calendar  months  next  after  the  ship  shall  arrive  at  Calcutta,  and  the 
residue  and  remainder  of  such  freight  to  be  paid  or  secured  to  the  satis- 
faction of  the  said  owner,  upon  the  arrival  of  the  ship  in  the  port  of 
London,  and  previous  to  commencing  the  discharge  of  her  homeward 
cargo:  Provided  always,  that  in  case  the  said  ship  shall  be  kept  or  de- 
tained at  Calcutta  aforesaid  more  than  ninety  days,  then  and  in  such 
case  the  said  George  Betham  doth  hereby  engage  to  pay  or  cause  to  be 
paid  at  Calcutta  aforesaid,  to  the  agent  of  the  said  owner,  the  sum  of 


8  Barnewall  «&  Cresswell,  166.  183 

1000/.,  either  in  cash  or  by  bills  to  be  approved  of  by  such  agent,  in 
part  payment  of  the  balance  of  freight  which  may  become  due  under 
and  by  virtue  of  this  charter-party:  and  the  further  sum  of  1000/.  at  the 
expiration  of  every  sixty  days  after  the  said  ninety  days  which  the  said 
ship  may  expend  or  lie  at  Calcutta  aforesaid.  And  it  is  hereby  declared 
and  agreed  by  and  between  the  said  parties,  that  bills  remitted  from  India 
in  manner  hereinafter  expressed  shall  be  deemed,  taken,  and  considered 
as  good  and  sufficient  security  for  the  payment  of  the  residue  or  balance 
of  freight  which  may  become  due  under  and  by  virtue  of  these  presents 
as  hereinbefore  mentioned.  And  G.  Betham  doth  hereby  especially 
promise  and  agree,  that  all  and  every  the  bills  of  exchange  which  may 
be  taken  in  payment  of  the  freight  of  the  said  ship's  homeward  cargo, 
shall  be  made  payable  to,  or  to  the  order  of  Messrs.  Buckles,  Bagster, 
and  Buchanan  of  the  city  of  London,  merchants,  or  indorsed  over  to 
them,  and  delivered  to  the  owner's  agent,  to  be  by  him  remitted  to  the 
said  Buckles,  Bagster,  and  Buchanan,  in  London,  who  it  is  hereby  espe- 
cially agreed  by  and  between  the  said  parties,  are  to  receive  the  amount 
thereof,  as  joint  trustees  for  the  said  owner  and  G.  Betham,  he  G. 
Betham  hereby  authorizing  and  empowering  them  to  appropriate  the 
proceeds  of  such  bills  of  exchange  in  or  towards  payment  to  the  owner 
of  the  balance  of  freight  which  may  be  or  become  due  to  him  under  and 
by  virtue  of  these  presents,  and  the  residue,  if  any,  to  G.  Betham.  And 
G.  Betham  doth  hereby  further  promise  and  agree  to  furnish  and  pro- 
vide, at  his  own  expense,  sufficient  provision  and  water,  and  also  all 
other  necessaries  for  the  use  of  the  passengers  on  board  the  said  ship; 
and  that  he  shall  and  will  pay  for  all  provisions  belonging  to  the  owners 
of  the  ship  which  shall  be  issued  for  the  use  of,  or  consumed  by,  any  of 
the  passengers  or  servants  during  the  voyage,  an  account  of  the  same 
being  rendered  to  him  once  a  week  by  the  said  owner's  agent,  or  by  the 
steward  on  board  the  ship.  And  further,  that  all  expenses  of  bulk 
heads,  cabins,  and  other  accommodation  for  passengers,  shall  be  paid  by 
him  G.  Betham;  the  materials  for  which  are  to  be  left  on  board  the  ship 
at  the  termination  of  the  voyage,  and  become  the  property  of  the  owner. 
And  G.  Betham  doth  also  agree  to  pay  and  defray  all  port  charges  and 
pilotage  which  may  be  incurred  by  the  ship  during  her  intended  service, 
save  and  except  such  as  may  be  incurred  in  the  port  of  London,  out- 
ward and  homeward  bound,  and  once  at  Calcutta.  And  G.  Betham 
doth  hereby  further  agree,  that  the  owner  siiali  have  the  liberty  of  ship- 
ping on  board  the  said  ship  outward  hound,  fieight  free,  any  quantity 
of  iron,  vinegar,  and  mustard  he  may  think  fit,  not  exceeding  in  the 
whole  100  tons,  to  be  delivered  at  Calcutta:  Provided  always,  and  it  is 
hereby  expressly  agreed  and  understood  by  and  between  ti)e  parties  to 
these  presents,  and  particularly  by  (i.  Betham,  that  an  agent  shall  be 
put  on  hoard  the  ship  by  the  owner  for  and  during  the  whole  of  her 
aforesaid  voyage  and  service,  and  who  is  to  have  a  separate  cabin  in  the 
said  ship  for  bis  sole  use,  and  to  mess  at  the  said  George  Bctham's  table; 
which  agent  is  to  have  the  sole  management,  direction,  and  superinten- 
dancc  of  the  ship's  stores  and  provisions,  and  the  issuing  and  delivering 
out  of  the  same  for  and  during  the  intended  voyage;  and  such  agent  is 
likewise  to  have  the  sole  ordering  and  purrhasinp;  of  any  su[)])lies,  stores, 
provisions,  and  other  artirhrs  which  may  be  rfiniircd  for  the  use  of  the 
ship  during  her  voyage,  and  that  all  hills  whirh  may  ho.  required  to  be 
ilrawn  upon  the  owners  of  the  ship  for  any  such  supplies  or  otherwise 


184  I'oi.viN  i-.  NmvHERiJY.   E.  T.  1828. 

on  aoconnt  of  iholiip,  shall  he  tirawii  by  such  n<>;(;nt  only:  Provided 
;i!.so,  and  it  is  horohy  rurthcr  ajijrced  by  and  between  the  said  parties, 
.md  espciMally  by  the  owner,  tli.it  the  fieighler  shall  have  the  liberty 
;ind  privilege  of  employing  the  ship  in  the  East  Indies  for  any  interme- 
diate voyage  or  voyages  he  may  think  fit,  without  prejudice  to  this 
charter-party,  but  not  exceeding  in  the  whole  the  time  or  term  of 
twelve  calendar  months,  to  be  computed  from  and  after  the  expiration 
of  thirty  days  next  after  the  arrival  of  the  ship  at  Calcutta  aforesaid, 
tipon  his  G.  Bctham's  paying  or  causing  to  be  paid  to  the  owner  the 
same  rate  of  freight  as  is  hereinbefore  stipulated,  viz.  25*.  per  ton  per 
month  for  all  such  additional  time  as  the  ship  may  be  so  employed  or 
detained  in  India;  such  additional  freight  being  paid  to  the  owner's 
agent  for  the  time  being,  or  secured  to  his  satisfaction,  previous  to  the 
ship  entering  or  proceeding  on  such  additional  voyage  or  service.  And 
it  is  hereby  expressly  provided  and  declared,  that  in  case  G.  Betham 
shall  proceed  with  the  said  ship  to  any  part  or  place  other  than  Madeira, 
^Madras,  and  Calcutta  aforesaid,  without  the  special  leave  in  writing  of 
the  agent  of  the  owner  for  the  time  being,  or  if  G.  Betham  shall  be 
guilty  of  a  breach  of  any  or  either  of  the  promises  and  agreements  here- 
in contained  on  his  part,  then  and  in  any  such  case  he  shall  be  and  be- 
come divested  of  any  further  command  of  or  in  the  ship,  and  it  shall 
thereupon  be  lawful  for  the  owner's  agent  for  the  time  being  to  appoint 
another  commander  for  the  ship  in  lieu  and  stead  of  the  said  George 
Betham."  This  charter-party  was  made  and  executed  bona  fide.  On 
the  25th  of  July  1816,  the  following  memorandum  was  signed  and 
agreed  to  by  the  defendant,  Thomas  Starling  Benson,  and  the  said  G, 
Betham:  "Conditions  agreed  between  Thomas  Starling  Benson,  Esq., 
owner,  and  George  Betham,  Esq.,  commander  of  the  ship  Benson,  on 
a  voyage  to  India.  Wages,  say  10/.  per  month.  No  primage  or  pri- 
vilege of  tonnage  whatever.  Cabin  allowance  for  voyage  (it  being  un- 
derstood that  the  agent,  chief  and  second  mates,  and  surgeon,  if  any, 
mess  in  cabin),  150/.,  owner  providing  nothing.  Allowances  while  in 
India,  three  sicca  rupees  per  day.'^  Samuel  Oviatt  went  as  agent  on 
board  the  said  ship  Benson  under  the  said  charter-party,  on  the  said 
voyage,  and  carried  out  letters  of  introduction  from  the  persons  using 
the  said  firm  of  Buckles,  Bagster,  and  Buchanan,  being  merchants  in 
London,  on  behalf  of  the  said  defendants,  to  the  plaintiffs,  by  which  he 
was  directed  to  apply  to  tliem  in  case  of  necessity,  and  he  did  apply  to 
them,  and  they  acted  as  agents  at  Calcutta,  both  for  the  said  defendants 
and  G.  Betham  as  hereinafter  mentioned.  Samuel  Oviatt  acted  under  a 
power  of  attorney  executed  by  the  defendant  Thomas  Starling  Benson, 
which  recited  the  charter  party,  and  then  gave  Oviatt  authority  to  do  on 
liis  behalf  all  things  for  which  that  instrument  contemplated  the  appoint- 
ment of  an  agent.  Samuel  Oviatt  carried  out  with  him  the  charter-party, 
and  communicated  it  to  the  plaintiffs  as  soon  as  he  arrived  at  Calcutta, 
and  before  the  shipping  of  the  goods,  and  the  plaintiffs  before  that  time 
read  the  charter-party,  and  received  a  copy  thereof,  and  for  the  freight  of 
the  said  quantity  of  sugar  and  indigo  in  the  bill  of  lading  mentioned, 
the  plaintiffs  drew  bills  upon  certain  other  persons,  payable  sixty  days 
after  the  ship  Benson's  arrival  in  London  to  the  order  of  Buckles,  Bag- 
ster, and  Buchanan,  which  bills  they  delivered  to  S.  Oviatt  to  be  re- 
mitted to  the  said  last  mentioned  persons,  pursuant  to  the  stipulation  in 
the  charter-party;  and  the  said  bills  were  so  remitted.     B.  Betham  em- 


8  Barnewall  &  Cresswell,  166.  185 

ployed  the  plaintifls  as  his  agents  at  Calcutta,  who  accordingly  acted  as 
his  agents,  and  collected  and  paid  over  to  him  the  freight  of  the  goods 
carried  in  the  ship  on  the  voyage  from  London  to  Calcutta,  and  procured 
freight  for  iiim  on  the  voyage  from  Calcutta  to  London;  and  they  had  a 
commission  from  him  for  procuring  such  freight.  The  ship  sailed  on  her 
voyage  from  the  river  Hooghly  to  London  with  the  said  quantities  of 
sugar  and  indigo  on  board,  but  they  never  were  delivered  to  the  plain- 
tiffs or  their  assigns  pursuant  to  the  bill  of  lading,  although  no  act  of 
God,  the  king's  enemies,  fire,  or  any  other  dangers  or  accident  of  the 
seas,  rivers,  or  navigation  of  what  nature  or  kind  soever,  prevented  the 
same  from  being  so  delivered;  but,  on  the  contrary  thereof,  1651  bags 
of  the  said  sugar,  and  twelve  chests  of  the  said  indigo  were  wholly  lost 
to  the  plaintiffs,  and  the  residue  of  the  said  sugar  and  indigo  greatly  les- 
sened in  value.     This  case  was  argued  on  a  former  day  in  this  term  by 

Parke  for  the  plaintiffs,  who  cited  Boucher  v.  Lcavson,  Cas.  temp. 
Hardw.  85.  194;  Parish  v.  Crawford,  Abb.  on  Shipping,  19;  James 
V.  Jones,  Abb.  on  Shipping,  20;  M'-Kenzie  v.  Ruiuc,  2  Camp.  4S2. 

Campbell  contra,  referred  to  Powell  v.  Lay  ton,  2  N.  R.  365;  lire- 
thcrton  and  others  v.  Wood,  3  B.  &  B.  24;  Saville  v.  Campion,  2  B. 
&  A.  503;    Tate  v.  Meek,  8  Taunt.  2S0;  Abbott  on  Shipping,  p.  22. 

Cur.  adv.  vult. 

The  judgment  of  the  Court  was  now  delivered  by 

Lord  Tenterden,  C.  J.  This  was  an  action  brought  by  certain  per- 
sons, who  shipped  goods  at  Calcutta  in  the  East  Indies,  against  the 
owners  of  the  sliip  for  the  loss  of  the  goods.  The  goods  were  shipped 
by  the  plaintiffs,  and  the  bills  of  lading  were  signed  by  G.  Betham,  who 
was  the  master  of  the  ship.  These  facts,  amongst  various  others,  have 
been  found  by  a  special  verdict.  The  defendants  rested  their  defence 
on  the  ground  that  an  instrument,  called  a  charter-parly,  had  been 
made  by  one  of  them,  on  the  part  of  himself  and  the  other  owners, 
before  the  ship  sailed  from  l-.ondon  on  the  voyage  to  the  East  Indies; 
and  it  was  contended,  that  they,  having  chartered  the  ship,  were  no 
longer  liable,  as  owncis,  for  the  loss  of  goods  shi])ped  to  be  convcycil 
on  the  voyage  for  which  the  shij)  was  chartered.  (His  Lordship  then 
slated  the  particulars  of  the  cluirter-j^nrly,  and  the  otiicr  material  parts 
of  the  special  verdict.)  Now,  the  fjuestion  is.  Whether  the  owners  of 
the  ship  were,  by  this  instrument,  maile  between  them  and  the  master, 
to  be  considered  as  having  chartered  their  ship  in  such  a  manner  as  to. 
be  released  from  the  responsibility,  which  belonged  to  them  by  the  go-* 
neral  rules  of  law  as  owners,  for  goods  shipped  on  board  their  ship? 
And,  on  consideration  of  the  case,  we  are  of  o|)inion,  that  they  are 
not  discharged  by  that  instrument;  for,  taking  the  whole  together,  it 
appears  to  be,  in  subst.'zncc!,  nothing  more  than  the  a|)|)ointment  of  a 
master,  upon  an  undertaUing  by  him  that  thr;  shi])  shall  earn  a  certain 
sum,  and  all  beyond  that  sum  was  to  t)e  lor  his  own  ijcncfil,  but  all  los.s 
was  to  be  made  good  by  him;  and  it  is  provided,  that  he  shall  sccun; 
the  performance  of  that  undertaking,  by  remitting  to  the  agents  of  thu 
owners  all  freight  bills  drawn  in  respect  of  goods  shipped  at  Calcutta. 
It  woidd  certainly  create  a  gieat  deal  of  confusion,  and  do  a  great  deal 
of  mischief,  as  far  as  regarils  tlic  shippers  of  goods,  if  it  were  comj)e- 
tcnt  for  th(' owners  of  the  ship  to  dischaige  themselves  from  responsi- 
bility by  means  of  such  a  contract  as  was  executed  in  this  instance.  It 
was  relied  on,   during  the  argument,   that   Ihr    [ilniiitiUs  were  infurmecl 

VOL.   XV.  ;.'  I 


186  Bklcheu  v.  Sikks.   E.   V.  182S, 

of  the  nature  ol"  tliat  contract;  l)ut  il'  the  eflect  of  it  he  not  such  as  the 
defendants  contend  for,  the  rcsponsihility,  l)y  the  general  rules  of  law, 
helongs  to  tliem  as  owners  with  respect  to  goods  shipped  on  hoard  their 
ship.  We  being,  therefore,  of  opinion,  tliat  the  plaintiffs  are  not  pre- 
vented by  a  knowledge  of  that  instrument,  from  suing  the  defendants, 
as  owners,   the  judgment  of  the  Court  must  he  for  the  plaintiffs. 

Judgment  for  the  plaintiffs. 


BELCHER  V.  W.  B.  SlKESand  Others,  Executors  of  the  last  Will 
and  Testament  of  A.  BRYMER,  deceased,  who  was  surviving  Ex- 
ecutor of  the  last  Will  and  Testament  of  JAMES  BRYMER,  de- 
ceased.— p.  1S5. 

An  indenture  recited,  that  A.  and  B.,  in  May  1813,  had  entered  into  a  contract 
with  the  commissioners  for  victualling  the  navy,  to  supply  his  Majesty's  ships 
with  sea  provisions  and  victualling  stores,  and  that  the  said  A.  and  B.  in  Sep- 
tember 1813,  had  nuitually  agreed  to  dissolve  the  copartnership  entered  into 
by  them  as  aforesaid,  for  carrying  on  the  business  of  the  said  contract,  and  all 
other  contracts,  entered  into  with  the  commissioners  by  B.  or  A.,  and  in  which 
they,  or  either  of  them,  were  in  anywise  interested  or  concerned,  and  all 
other  copartnerships  whatsoever  subsisting  between  them;  and  upon  the  treaty 
for  such  dissolution,  it  was  agreed  that  the  share  of  B.  in  the  property  belong- 
ing to  the  copartnership  should  be  estimated  at  50,000/.,  and  be  taken  by  A. 
at  that  sum.  It  then  further  recited,  that  it  had  been  agreed  that  A.  should, 
by  his  bond,  indemnify  B.  against  all  damages  by  reason  of  his  having  entered 
into  the  said  recited  contract  with  A,  and  by  reason  of  all  other  contracts  en- 
tered into  by  B.  and  A.  respectively,  and  in  which  they  or  cither  of  them  had 
any  interest  as  aforesaid.  The  indenture  then  witnessed  that  A.  and  B.,  by 
mutual  consent,  dissolved  the  said  copartnership  so  entered  into,  and  then  or 
lately  subsisting  between  them  for  supplying  his  Majesty's  ships  witli  provi- 
sions and  stores,  under  or  by  virtue  of  the  said  recited  contract,  and  of  all 
other  contracts  in  which  B.  and  A.,  or  either  of  them,  had  any  interest  or  con- 
cern as  aforesaid.  The  deed  then  contained  a  mutual  release  of  all  actions, 
accounts,  reckonings,  &;c.  which  either  of  them  (A.  and  B.)  now  had  or  ever 
had,  or  which  either  of  them,  or  cither  of  their  executors,  should  or  might 
thereafter  have,  claim,  or  demand  against,  from,  or  under  the  other  of  them, 
or  his  heirs,  executors,  6cc.,  for  or  by  reason  of  the  said  copartnership  or  co- 
partnerships so  thereby  dissolved  as  aforesaid,  upon  or  by  reason  of  any  of  the 
acts,  matters,  and  things  whatever  in  anywise  relating  to  the  said  recited  con- 
tract, and  all  other  contracts  in  which  B.  and  A.,  or  either  of  them,  had  any 
interest  whatsoever.  B.  then  assigned  to  A.  all  the  share  and  interest  of  him 
(B.)  of  and  in  all  the  debts  and  sums  of  money  whatsoever,  then  due  and  ow- 
ing to  them  (A.  and  B. )  under  or  by  virtue  of  the  same  several  contracts,  or 
otherwise,  and  all  bonds,  bills,  &;c.  relating  to  the  said  contract,  debts,  and 
sums  of  money,  or  any  part  thereof,  and  all  the  goods,  stock,  and  effects 
whatsoever  then  belonging  to  them,  the  said  A.  and  B.,  as  such  copartners 
respectively,  and  all  the  right,  title,  and  interest  of  him  (B.)  of,  in,  to,  from, 
out,  or  in  respect  of  the  premises.  A  power  was  then  given  to  A.  to  recover, 
and  give  discharge  for  tlie  said  debts. 

At  the  time  when  this  deed  was  executed,  B.  and  A.  had  been  concerned  in  con- 
ducting business  together  as  contractors  for  the  navy.  In  some  contracts  B. 
was  solely  interested  as  contractor;  in  others  A.  was  solely  interested  as  con- 
tractor; and  in  some  they  were  jointly  interested  as  partners  and  contractors. 
They  had,  however,  both  been  concerned  in  all  the  contracts.  A.  havhig 
been  agent  in  managing  those  contracts  in  which  A.  was  solely  interested,  and 
B.  having  been  agent  in  managing  those  contracts  in  which  A.  was  solely  inter- 
ested; and  there  was  money  due  from  the  commissioners  of  the  navy  in  respect 
of  each  of  these  classes  of  contraclb:  Held,  that  by  this  deed,  the  contracts 
in  which  B.  had  been  originally  sepai'ately  interested,  were  constituted  as  be- 


8  Barnewall  &  Cresswell,  185.  187 

tween  A.  and  B.  partnership  contracts,  and  consequent!)',  that  A.  was  entitled 
by  the  deed  to  receive  all  sums  due  to  B.,  in  respect  of  those  contracts,  at  the 
time  of  the  execution  of  the  deed. 
Bv  the  deed,  B.  for  himself,  his  heirs,  executors,  and  administrators,  covenan- 
ted that,  for  and  notwitlistandingany  act  done  by  him  (B. ),  it  should  be  lawful 
for  A.  to  receive  the  money  debts,  and  premises  thereby  assigned,  without  any 
let,  suit,  interruption,  or  denial  of  B.,  his  executors,  or  administrators,  or  any 
person  claiming  under  him  or  them  :  Held,  that  the  words,  "  for  and  notwith- 
standing any  act  done  by  B."  being  inconsistent  with  the  subsequent  pai-t  of 
the  covenant,  ought  to  be  rejected,  and,  therefore,  that  it  was  a  sufficient 
breach  of  rhai  covenant  to  allege  a  receipt  of  the  money  by  the  executor  of 
B.  in  respect  of  the  contracts  mentioned  in  the  indenture. 

Declaration  stated  that  heretofore,  and  in  the  lifetime  of  James 
Brymer,  to  wit,  on  the  10th  of  March  1814,  at,  &c.,  by  a  certain  in- 
denture made  between  the  plaintiif,  of  the  one  part,  and  James  Brymer 
of  the  other  part,  after  reciting,  amongst  other  things,  that  the  plaintiff 
and  James  Brymer  in  or  about  the  month  of  May  1S13,  entered  into 
and  signed  a  contract  with  three  of  the  commissioners  for  victualling 
his  Majesty's  navy,  to  supply  and  deliver  on  board  his  Mnjesty's  ships 
at  Halifax  in  Nova  Scotia,  Quebec  in  Canada,  Norfolk  in  Virginia,  and 
the  island  of  Bermuda,  all  such  quantities  of  sea  provisions  and  victual- 
ling stores,  consisting  of  the  several  articles  specified  in  the  contract, 
as  should  f^rom  time  to  time  be  required  for  the  use  of  the  ships, &c.  for 
the  space  of  twelve  calendar  months  certain,  and  further  until  six 
months'  notice  in  writing  should  be  given  by  either  of  the  contracting 
parties  for  the  termination  of  the  contract,  and  for  which  provisions  and 
victualling  stores  so  to  be  supplied  and  delivered,  it  was  agreed  that 
the  plaintiff  and  J.  Brymer  should  be  paid  at  the  rates  and  prices  men- 
tioned in  the  contract,  upon  production  of  the  vouchers  and  documents 
therein  also  mentioned;  and  further  reciting  that  the  plaintiff  and  J. 
Brymer,  in  pursuance  of  the  contract,  supplied  and  delivered  from 
lime  to  time  divers  considerable  quantities  of  sea  provisions  and  victu- 
alling stores  to  the  saifl  ships  and  vessels  at  the  several  stations  aforesaid; 
and  also  that  tin;  plaintiif  and  J.  lirymcr  about  the  17lh  September 
1S13,  mutually  agreed  to  dissolve  the  ropartnershij)  so  entered  into  by 
them  for  carrying  on  the  business  of  the  said  contract,  and  all  other 
contracts  entered  into  with  the  commissioners  for  victualling  his  Majes- 
ty's navy  by  J.  Brymer  or  the  plaintiff,  and  in  which  they  or  either  of 
them  were  in  any  ways  interested  or  concerned,  and  all  other  copart- 
nerships whatsoever  subsisting  between  them;  and  upon  the  treaty  for 
such  dissolution  it  was  agreed  that  the  share  and  interest  of  J.  Jirymer 
of  and  in  the  monies,  properly,  and  eflccts  belonging  lo  the  said  co- 
partnership, or  to  them  the  said  parties  on  account  thereof,  should  be 
csliiiialcfl  at  the  stun  of  50,000/.,  and  he  taken  by  the  plaintifl'  at  that 
sum;  and  that  the  said  plaintiff  should  thenceforth  have  the  lull  benefit 
of  the  said  recited  contract,  and  cany  on  the  business  thereof  on  his 
own  account,  and  for  his  own  exclusive  use;  and  that  he  should  concur 
with  J.  Brymer  in  an  application  to  the  commissioners  for  victualling 
his  Majesty's  navy  to  withdraw  the  name  of  J.  Brymer  from  the  said 
recited  contract;  and  also  reciting  that  the  application  hail  accordingly 
been  made  to  the  commissioners,  who  consented  that  the  name  of  .1. 
Brymer  should  be  withdrawn,  and  the  samr^  had  accordingly  been 
wilbdrawii  from  the  said  lecited  contract;  and  ;ilso  reciting  that  the 
|)lainti(f  had  paid  to  .[.  Brymer  30,000/.  in  part  of  the  said  sum  of 
^i(),Of)0/ ,  file  vahn"  i>r  his   sliaio  of  ilw    |i:ir)n<'rslii|i    |)i(tpr)(\.    mdiiir. 


188  BiiLCHEU  v,  Sikes.  E.  T.  1828. 

and  cflccts  ;is  he  J.  lirymer  did  thereby  admit  and  acknowlo(lf>;c,  testi- 
fied by  bis  cxccutinjj;  the  said  recited  indenture.  And  the  phiintifl'  for 
sccurinu;  to  .1.  Brymcr  the  payment  of  the  sum  of  20,000/.,  residue  of 
the  sjid  sum  of  50,000/.,  and  interest  from  tlie  1st  of  January  then  last 
])ast,  liad  accoj)ted  certain  bills  of  exchanj^e  therein  particularly  men- 
tioned. And  also  rccitinc;  that  upon  the  treaty  for  such  dissolution  as 
aforesaid,  it  was  further  aj^rced  that  the  plaintiff  should,  by  his  bond  in 
a  sufficient  penalty,  save,  defend,  and  keep  harmless  and  indemnified 
J.  13rymer  of,  from,  and  against  all  costs,  losses,  charges,  damages, 
and  expenses  whatsoever  by  reason  or  on  account  of  his  having  entered 
into  tlie  recited  contract  with  the  plaintiff,  and  by  reason  or  on  account 
of  all  other  contracts  entered  into  b)^  J.  Brymer  and  the  plaintiff  re- 
spectively, and  in  which  they  or  either  of  them  had  any  interest  or 
concern  as  aforesaid;  and,  accordingly,  the  plaintiff  had  by  his  bond 
under  his  hand  and  seal,  bearing  even  date  with  the  recited  indenture, 
become  bound  to  J.  Brymcr  in  the  penal  sum  of  10,000/.,  which  bond, 
after  reciting  as  in  the  indenture  mentioned,  was  conditioned  to  be  void, 
if  the  plaintiff,  his  heirs,  executors,  or  administrators  did  and  should, 
from  time  to  time  thereafter,  at  his  and  their  own  costs  and  charges, 
Avell  and  effectually  save,  defend,  keep  harmless  and  indemnified,  J. 
Brymer,  his  heirs,  executors,  administrators,  and  assigns,  and  every 
of  them,  and  his,  and  their  lands  and  tenements,  goods,  and  chattels, 
of,  from,  and  against  all  claims  and  demands  whatsoever, alieady  made 
or  thereafter  to  be  made  by  government,  upon  or  against  J.  Brymer, 
for  or  in  respect  of  the  said  recited  contract,  or  of  any  other  contract 
or  contracts,  entered  into  by  J.  Brymer  and  the  plaintiff  respectively 
Avith  the  commissioners,  and  in  which  J.  Brymcr  and  the  plaintiff,  or 
either  of  them,  had  any  interest  or  concern  as  aforesaid,  and,  also,  of, 
from,  and  against  all  and  singular  the  debts  and  sums  of  money,  con- 
tracts, and  engagements,  cither  already  or  thereafter  to  be  incurred, 
sustained,  made,  or  entered  into,  for,  or  in  respect  of  or  relating  to 
the  said  several  contracts,  or  any,  or  cither  of  them,  and  also  of,  from, 
and  against  all  actions,  suits,  costs,  losses,  charges,  damages,  and  ex- 
penses, claims,  and  demands  whatsoever,  which  should,  or  might,  at 
any  time  or  times  thereafter,  be  had,  brought,  commenced,  sued,  or 
prosecuted  against,  paid,  borne,  or  sustained  by,  or  be  made  upon,  J. 
Brymer,  his  heirs,  executors,  or  administrators,  for,  or  by  reason, 
or  means,  or  on  account  of  the  same  debts  and  sums  of  money,  con- 
tracts, and  engagements,  or  any,  or  either  of  them,  or  for,  or  b}'  rea- 
son, or  means,  or  on  account  of  any  breach  or  non-performance,  either 
made  or  committed,  or  to  be  made  or  conmiitted,  of  the  said  several 
contracts  so  entered  into  as  aforesaid,  or  any,  or  either  of  them,  or  any 
])art  thereof,  or  any  article,  act,  matter,  or  thing  whatsoever,  in  any- 
■wise  relating  thereto.  Jt  was  witnessed  by  the  indenture  that,  in  fur- 
ther pursuance  of  the  said  recited  agreement,  and  in  consideration  of 
all  and  singular  the  premises,  they,  the  phiintiff  and  J.  ]3rymer,  did, 
by  mutual  consent,  dissolve  and  determine  the  co-partncrshi])  so  enter- 
ed into,  and  then,  or  lately,  subsisting  between  them,  for  supplying 
Jiis  majesty's  ships,  &c.,  at,  &.C.,  with  sea  provisions  and  victualling 
stores  as  aforesaid,  under  or  by  virtue  of  the  recited  contract,  and  of 
all  other  contracts  in  which  J.  Brymer  and  tlie  plaintiff,  or  either  of 
them,  had  any  interest  or  concern  as  thereinbefore  mentioned,  and  all 
other  co-partnerships  subsisting  between  them,  the  plaintiff  and  J. 
Bjymcr,  in   any   manner,   or   ii])on  any  account   whatsoever,  and  did 


8  Barnewall  &  Cresswell,  185.  189 

thereby  declare  and  agree  that  the  same  co-partnership  should  be,  and 
be  considered,  as  having  ceased,  determined,  and  been  utterly  void  to 
all  intents  «nd  purposes  whatsoever,  upon  the  said  17th  day  of  Septem- 
ber 1S13;  and  that  notice  of  such  dissolution  of  the  said  co-partnership 
should  be  forthwith  signed  by  the  said  parties,  and  inserted  in  the  Lon- 
don Gazette.  And  each  of  them,  tlie  plaintiff  and  J.  Brymer,  did 
thereby,  for  himself,  his  heirs,  executors,  and  administrators,  release, 
acquit,  and  for  ever  discharge  the  other  of  them,  and  his  heirs,  execu- 
tors, and  administrators,  of,  and  from  all  actions,  suits,  causes  of  ac- 
tion and  suits,  debts,  accounts,  reckonings,  controversies,  sum  and 
sums  of  money,  damages,  costs,  losses,  charges,  claims,  and  demands 
whatsoever,  at  law  or  in  equity,  or  otherwise,  which,  either  of  them, 
the  said  plaintiff  and  J.  Brymer,  then  had,  or  ever  had,  or  which  either 
of  them,  or  either  of  their  executors  or  administrators,  could,  should, 
or  might  thereafter  have,  claim,  or  demand  against,  from,  or  upon,  the 
other  of  them,  or  his  lieirs,  executors,  or  administrators,  for  or  by 
reason,  or  means,  or  on  account  or  in  consequence  of  the  said  co-part- 
nership or  co-partuerships  between  them,  so  thereby  dissolved  as  afore- 
said, upon,  or  by  reason,  or  means,  or  on  account,  or  in  consequence 
of  all  or  any  of  the  acts,  transactions,  matters,  and  things  whatsoever, 
in  anywise  relating  to,  touching,  or  concerning  the  said  recited  con- 
tracts, and  all  other  contracts  in  which  J.  Brymer  and  the  plaintiff,  or 
either  of  them,  had  any  interest  whatsoever,  or  the  business  or  concern 
thereof,  or  the  said  copartnerships,  or  any  or  either  of  them,  or  on 
any  other  account  whatsoever  (save  only  and  except  the  said  bills  of  ex- 
change so  accepted  by  the  plaintiff  as  aforesaid,  for  the  purpose  of  se- 
curing the  said  sum  of  20,000/.  and  interest  at  the  times  and  in  the 
manner  aforesaid,  and  all  and  every  remedies,  &c.  to  be  pursued  by  J. 
Brymer,  his  executors,  administrators,  or  assigns,  for  recovering  the 
payment  of  the  same  or  any  or  either  of  them,  and  also  except  the  said 
bond,  and  all  means  to  be  taken  or  pursued  by  J.  Brymer,  his  execu- 
tors, or  administrators,  for  enforcing  the  due  execution  and  performance 
of  the  conditions  thereof,  or  for  recovering  damages  on  account  of  the 
breach  or  non-performance  of  the  same  or  any  part  tliereof.  And  it  was 
by  the  indenture  also  witnessed,  that  in  further  pursuance  of  tlie  recited 
agreement  on  the  part  of  .1.  Brymer,  and  in  consideration  of  all  and 
singular  the  premises,  he  J.  Brymer  did  bargain,  sell,  assign,  transfer, 
set  over,  and  confirm  unto  the  plaintiff,  his  executors,  &c.  all  the  share 
and  interest  of  him  J.  Jirymer  of,  in,  and  to  all  and  singular  the  debts, 
sum  and  sums  of  money  whatsoever  then  due  ami  owing  to  them  the 
plaintiff  and  .1.  JJrymcr  by  virtue  or  in  consef|uence  of  the  same  several 
contracts  or  otherwise,  and  all  bonds,  bills,  and  notes  relating  to  the 
said  contract  debts  and  sums  of  money,  or  any  of  them,  or  any  |)art 
thereof,  and  of  and  in  all  and  singular  other  the  monies,  goods,  chat- 
tels, stock,  and  effiicts  whatsoever  and  wheresoever  then  of  or  belong- 
ing to  them  the  jjlaintiff  and  J.  Brymer  as  such  copartners  respectively; 
and  all  the  right,  title,  and  interest,  property,  claim,  and  demand 
whatsoever  of  him  J.  Jirymer  of,  in,  to,  from  or  out  of  or  in  rcs|)ect 
of  the  premises.  To  have,  bold,  receive,  take,  and  enjoy  the  said 
share  and  interest  of  him  J.  Brymer,  assigned  or  intended  to  be  as- 
signed by  the  said  indenturf;  of  and  in  the  said  dehls,  monies,  goods, 
chattels,  and  all  and  singtdar  other  the  effects  and  premises  thereinbe- 
fore nientionetl,  and  every  [)art  of  the  same,  and  all  benefit  and  advan- 


190  Belcher  V.  SiKES.  E.  T.  1828. 

tagc  thereof  unto  (he  ])hiintifl',  his  executors,  administrators,  and 
assigns,  as  ;.nil  for  his  and  their  own  pro])er  monies  and  cH'ccts  ahsohite- 
ly,  and  with  full  power  and  authority  to  and  for  him  and  them  to  re- 
cover, receive,  and  give  eirectual  acquittances  and  discharges  for  the 
same  sum  and  sums  of  money,  debts,  and  premises,  and  every  part 
thereof,  but  subject  nevertheless  as  therein  mentioned.  And  J,Br3^mer 
tlid  thereby  for  himself,  his  heirs,  executors,  and  administrators 
(amongst  other  things)  covenant  and  agree  with  the  plaintiff,  his  exe- 
cutors, administrators,  and  assigns  that  for  and  notwithstanding  any 
act,  deed,  matter,  or  thing  whatsoever  made,  done,  committed,  or 
suffered  to  tlie  contrary  by  liim  J.  Brymer,  it  should  and  might  be  law- 
ful for  the  ])laintiff,  his  executors,  &c.  to  have,  hold,  receive,  take, 
and  enjoy  the  said  sum  and  sums  of  money,  debts  and  premises  thereby 
assigned,  or  intended  so  to  be,  and  every  part  and  parcel  of  the  same, 
without  any  let,  suit,  interruption,  or  denial  of  him  J.  Brymer,  his 
executors  or  administrators,  or  any  person  or  persons  rightfully  claim- 
ing by,  through,  or  in  trust  for  him  or  them.  And,  also,  that  he,  J. 
Brymer,  should  not,  nor  would  at  any  time  thereafter,  without  the 
consent  in  writing  of  the  plaintiff,  his  executors  or  administrators,  or 
the  order,  judgment,  or  decree  of  some  court  of  law  or  equity  for  that 
purpose  first  had  and  obtained,  receive,  release,  acquit,  or  discharge 
all  or  any  part  of  the  same  sum  and  sums  of  money,  debts,  and  pre- 
mises; or  without  such  consent,  order,  judgment,  or  decree,  revoke 
or  countermand  all  or  any  of  the  powers  and  authorities  thereinbefore 
contained  and  given  to  the  plaintitF,  his  executors,  administrators,  or 
assigns;  as  by  the  said  indenture,  reference  being  thereto  had,  will, 
amongst  other  things,  more  fully  and  at  large  ai)pear.  Breach,  that 
the  plaintiff  could  not  lawfully,  and  did  not  have,  hold,  receive,  take, 
and  enjoy  the  said  sums  of  money,  debts,  and  premises  assigned  by  the 
indenture,  without  any  let,  suit,  interruption,  or  denial  of  him  the  said 
.T.  Brymer,  his  executors  or  administrators,  but,  on  the  contrary  thereof, 
afterwards,  and  after  the  death  of  J.  Brymer,  and  in  the  life-time  of 
the  said  Alexander  Brymer,  executor  as  aforesaid  of  the  said  J. 
Brymer,  to  wit,  on  the  ISth  of  July  1S17,  at,  &c.,  the  said  A.  Brymer,  as 
executor  of  the  said  J.  Brymer,  demanded  and  received  of  and  from  the 
commissioners,  the  sum  of  20,000/.,  for  and  in  respect,  and  on  account 
of  the  contracts  mentioned  in  the  indenture,  or  some  or  one  of  them, 
and  which  said  last-mentioned  sum  of  20,000/.  was  part  and  parcel  of 
the  money,  debts,  and  premises  assigned  by  the  indenture,  and  mention- 
ed in  the  covenant  so  made  by  J.  Brymer,  for  himself  and  his  executors' 
in  that  behalf  as  aforesaid,  and  thereby,  by  the  act  of  him  A.  Brymer, 
being  such  executor,  interrupted  and  altogether  prevented  the  plaintiff 
from  having,  holding,  taking,  and  enjoying  the  said  last-mentioned  sum, 
contrary  to  the  tenor  and  effect  of  the  indenture,  and  of  the  said  covenant. 
Second  breach,  that,  after  the  making  of  the  said  indenture,  the  said  A. 
Brymer,  as  executor  as  aforesaid  of  tlic  said  J.  Brymer,  did,  without  the 
consent  in  writing  of  the  plaintiff,  or  the  order,  judgment,  or  decree  of 
any  court  of  law  or  equity  for  that  purpose  first  had  and  obtained,  receive, 
release,  acquit,  and  discharge  another  large  sum  of  money,  to  wit,  the 
sum  of  20,000/.,  part  of  the  said  sums  of  money,  debts,  and  premises  in 
the  said  covenant  in  that  behalf  mentioned,  contrary  to  the  form  and 
effect  of  the  indenture,  and  of  the  covenant  so  made  in  that  behalf  by  J. 
J5rymer  for  himself  and  his  executors  as  aforesaid.     Third  breach,  that 


8  BaRNEWALL  &  CUESSWELL,  185.  191 

A.  Brymer,  as  executor  of  J.  Brynier,  did,  without  the  consent  in  writing; 
of  the  plaintiff,  or  the  judgment,  &.C.,  of  any  court  of  law  or  equity,  re- 
voke and  countermand  the  powers  and  authorities  contained  in  the  in- 
denture. First  plea,  nonest  factum;  second,  that  A.  Brymer  did  not  at  any 
time  demand  or  receit^e  any  sum  or  sums  of  money,  part  or  parcel  of  the 
money,  debts,  and  premises  assigned  by  the  indenture  and  mentioned  in 
the  covenant  so  made  by  J.  Brymer,  from  tlie  commissioners  for  or  in 
respect  or  on  account  of  the  contracts  mentioned  in  the  indenture,  or 
any  of  them,  in  manner  and  form,  &c.  Third  and  fourth  pleas  negativ- 
ing in  like  manner  the  allegations  contained  in  the  second  and  third 
breaches. 

The  cause  came  on  for  trial  before  Lord  Tenterdcn  C.  J.  at  the  Lon- 
don sittings  after  Trinity  term  1827,  when  a  verdict  was  found  for  tho 
plaintiff,  subject  to  the  award  of  an  arbitrator,  to  whom  it  was  referred 
to  decide  upon  all  matters  in  difference  in  that  cause;  and  also  to  ascer- 
tain what  sum  was  received  by  the  late  Messrs.  Brymer  on  contracts  in 
which  the  plaintiff  and  the  late  J.  Brymer  were  jointly  interested,  and 
what  sum,  if  any,  was  received  on  contracts  in  which  they  had  no  joint 
interest;  and  the  arbitrator  was  to  stale  the  deed  for  the  opinion  of  the 
Court  whether  the  plaintiff  was  entitled  to  both,  either,  and  which  of 
the  sums.  The  arbitrator  awarded  as  follows:  That  the  verdict  should 
be  entered  for  the  plaintiff  upon  all  the  issues,  and  assessed  the  damages 
for  the  breaches  of  covenant  at  the  sum  of  8594/.  2^.  2d.,  which  said 
sum  he  awarded  that  the  defendants  should  pay  to  ihe  plaintiff.  The 
arbitrator  also  found  the  following  facts  upon  which  his  award  was 
founded,  and  which  by  the  consent  of  the  parties  were  stated  in  the  fol- 
lowing form,  for  the  opinion  of  his  Majesty's  Court  of  King's  Bench. 

For  a  long  period  of  time,  and  prior  to  any  of  the  contracts  hereinafter 
mentioned,  J.  Brymer  and  A.  Belcher  had  been  concerned  in  conducting 
business  together  as  contractors  for  the  navy.  In  some  contracts  J.  Bry- 
mer was  solely  interested  as  contractor;  in  others,  A.  Belcher  was  solely 
interested  as  contractor;  and  in  some  they  were  jo:ntly  interested  as 
partners  and  contractors.  They  had,  however,  both  been  concerned  in 
conducting  all  the  contracts;  A.  Belcher  having  been  agent  in  managing 
those  contracts  in  which  J.  lirymer  was  solely  interested,  and  J.  Bry- 
mer having  been  agent  in  managing  those  contracts  in  which  A.  Belcher 
was  solely  interested.  Under  these  circumstances,  on  the  10th  day  of 
March  1S14,  A.  Belcher  and  J.  lirymer  dissolved  partnership  by  the 
following  deed.  (The  arbitrator,  after  sotting  out  the  indenture  stated 
in  the  declaration,  proceeded  as  follows:)  At  the  time  when  tliis  deed 
was  80  executed,  there  were  the  following  sums  due  from  the  commis- 
sioners of  the  Navy  Board,  viz.  under  a  contract  dated  the  1 7th  of  Sep- 
tember 1793,  the  sum  of  230/.  ds.  4d.;  under  seven  different  contracts, 
two  dated  the  2  Ith  day  of  January  17!)S,  one  dated  the  3(1  of  September 
179S,  two  dated  the  2Gth  of  July  1S03,  and  two  dated  the  1th  of  August 
1803,  the  simi  of  7177/.  M.S'.  f>.U/.;  and,  lastly,  under  a  contract  dated 
July  fith  1H07,  the  sum  of  11S5/.  18.y.  Oid.  These  several  contracts  were 
iluly  entered  into  with  the  Navy  Board  at  the  above  dates.  For  all  these 
several  sums  which  arose  from  the  fmal  settlement  of  long  and  compli- 
cated accounts  under  the  above  contracts,  J.  Brymer  belorc  his  death 
made  a  claim  on  the  Navy  Board.  'I'his  claim,  sid)ser|iiently  to  the  death 
of  J.  Brymer,  was  renewed  by  his  executor  A.  Brynier,  and  the  several 
sums  above  mentioned  were,  after  a  long  investigation,  fnially  allowed, 


192  Uklciieh  v.  Sikes.   E.  T.  IS28. 

ami  the  monies  |iai(l  to  A.  Hrymer  by  the  Navy  Board  in  1S17.  Of  all 
those  transaclioiis,  A.  IJelcher  was  ignorant  till  lonji;  after  the  receipt  of 
tlie  money  hy  A.  Hrynier.  As  to  the  contract  of  the  17th  day  of  Scp- 
icniher  1793,  the  arbitrator  founil  as  a  fact  that  prior  to  the  arrangement 
iiKulc  by  the  above  deed  of  the  lOlli  of  March  ISl  t,  A.  liclcher  was  solely 
interested  therein  as  contractor  to  tiie  Navy  Board.  As  to  the  contract 
of  the  filh  of  July  1S07,  he  found  as  a  fact  that  A.  Belcher  and  J.  Brymer 
were  jointly  interested  therein  as  contractors  with  the  Navy  Board  prior 
to  and  at  the  time  of  the  execution  of  the  deed  of  the  10th  of  March  1S14. 
And  as  to  the  contracts  of  the  24th  of  January  17f)S,  the  3d  of  Septem- 
ber 1798,*  the  2CA\\  day  of  July  1S03,  and  the  4th  of  August  1803,  he 
fouinl  thnt  prior  to  the  arrangement  made  by  the  deed  dated  the  lOtli  of 
Marcii  1814,  J.  Brymer  was  solely  interested  therein  as  contractor  with 
the  Navy  Board.  He  then  stated,  that  it  was  contended  before  him, 
that  under  the  true  construction  of  the  above  deed  all  these  several  con- 
tracts were  constituted  by  the  parties  as  between  themselves,  partnership 
contracts,  and  were  included  in  the  provisions  of  the  deed;  and  that  if 
the  Court  should  think  that  the  deed  extended  only  to  contracts  with  the 
Navy  Board,  in  which  A.  Belcher  and  J.  Brymer  were  jointly  interest- 
ed prior  to  tlie  time  of  its  execution,  then  he  assessed  the  damages  for  the 
above  breaches  of  covenant  at  the  sum  of  1185/.  18^.  Oid.  instead  of  the 
sum  of  8594/.  2,?.  2d.  above  awarded. 

A  rule  nisi  having  been  obtained  for  setting  aside  the  award,  or  arrest- 
ing the  judgment, 

The  SolicUor-Gcneral,  Scarlett,  and  Chilton  shewed  cause.  The 
question  is,  whether  by  the  deed  of  dissolution  all  the  interest  of  James 
Brymer  in  the  separate  as  well  as  the  joint  contracts  passed  to  the  plain- 
tiff. The  intention  of  the  parties  must  be  collected  from  the  whole  con- 
text and  contents  of  the  deed.  Earl  of  Clunrickard^s  case,  Hob.  275. 
The  recitals  show  clearly  that  the  deed  is  not  confined  to  those  contracts 
in  which  both  Brymer  and  Belcher  were  parties,  but  that  it  also  extends 
to  those  in  which  Brymer  was  separately  interested.  The  deed  recites 
the  contract  made  in  1813,  and  that  the  parties  had  agreed  to  dissolve  the 
partnership  entered  into  between  them  for  carrying  on  the  said  contract, 
and  all  other  contracts  entered  into  by  the  said  A.  Belcher  or  James 
I'rymer,  and  in  which  they  or  either  of  them,  were  interested  or  con- 
cerned. From  this  recital,  therefore,  it  is  clear  that  other  contracts  be- 
sides those  in  which  the  parties  were  jointly  interested  were  in  contem- 
plation. Belcher  then  agrees  to  indemnify  Brymer  against  all  claims  to 
be  made  on  him  upon  or  in  respect  of  the  separate  as  well  as  the  joint 
contracts.  Why  should  Belcher  indemnify  Brymer  against  claims  on  the 
separate  contracts,  unless  Brymer's  interest  in  the  separate  contracts  was 
intencjpd  to  pass  to  Ijclcher?  The  convenant  for  the  benefit  of  the  as- 
signee must  be  considered  as  co-extensive  with  the  covenant  to  indem- 
nify the  assignor.  The  language  of  the  assigning  part  of  the  deed  is  not 
so  large  as  that  of  the  recitals;  but  even  that  part  of  the  deed,  after  mak- 
ing specific  mention  of  partnership  contracts,  conveys  ''all  the  right,  title, 
and  interest,  &.c.  of  him  the  said  James  Brymer  of,  in,  to,  from,  out,  or 
in  respect  of  the  premises."  The  word  premises  connects  the  assigning 
part  of  the  deed  with  the  recitals,  and,  so  connected,  it  embraces  all 
Brymer's  interest  in  his  separate  as  well  as  his  joint  contracts.  Besides, 
effect  must  be  given  to  all  the  words  of  the  deed.  Mention  is  frequently 
made  of  all  contracts  in  which  Belcher  and  Brymer,  or  either  of  them, 


8  Barnewall  &  Cresswell,  185.  193 

were  interested.  It  is  impossible  to  give  effect  to  those  words  without 
holding  that  the  interest  of  James  Brymcr  in  the  separate  contracts  pass- 
ed to  Belcher  by  the  deed.  Then,  os  to  the  objection  in  arrest  of  judg- 
ment, the  covenant  is  *'  that  for  and  notwithstanding  any  act,  matter,  or 
thing  done  by  J.  Brymer,  it  shall  be  lawful  to  and  for  A.  Belcher,  his 
executors,  &c.,  to  have,  hold,  receive,  take,  and  enjoy  the  sums  of  money, 
debts,  and  premises  thereby  assigned,  without  any  let,  suit,  interruption, 
or  denial  of  him  the  said  James  Brymer,  his  executors  or  administrators, 
or  any  person  rightfully  claiming  or  to  claim,  by,  from,  through, under, 
or  in  trust  for  him  or  them."  The  objection  is,  that  the  act  of  receiv- 
ing the  money  being  an  act  done  by  Alexander  Brymer,  the  executor  of 
James  Brymer,  is  not  within  the  covenant;  that  the  covenant  is  confined 
to  acts  done  by  James  Brymer,  and  does  not  extend  to  any  act  done  by 
his  executor.  But  an  action  lies  against  an  executor  or  administrator 
"upon  every  contract  or  covenant  made  by  his  testator  or  intestate,  which 
appears  by  any  record  or  specialty,"  Com.  Dig.  Administration,  (B.) 
14.,  and  even  against  an  executor  upon  an  obligation  or  covenant  to  in- 
struct an  apprentice  in  his  trade,  though  it  sounds  a  personal  act,  Walker 
V.  Hull,  1  Lev.  177,  and  Bennetts  case,  Lofft.  85.  It  lies  in  every  case 
against  an  executor,  although  he  be  not  named,  unless  it  be  such  a  cove- 
nant as  is  to  be  performed  by  the  person  of  the  testator,  and  which  the  ex- 
ecutor cannot  perform,  Hyde  v.  Dean  and  Canons  of  IVindsor,  Cro. 
Eliz.  552.  The  covenant  in  this  case  is,  that  Belcher  shall  receive, 
without  the  interruption  of  James  Brymer,  his  executors,  or  any  person 
rightfully  claiming  under  him  or  them.  Alexander  Brymer  claimed  and 
received  the  money  in  the  character  of  executor.  The  Navy  Board 
have  attended  to  no  claim  that  was  not  made  by,  from,  through,  or  under 
James,  with  whom  they  contracted.  If  the  construction  contended  for 
were  to  prevail,  the  consequences  would  follow  that  the  covenant  might 
be  nugatory.  Suppose  James  Brymer  had  died  the  day  after  the  execu- 
tion of  the  deed,  and  large  sums  had  been  due  on  tiiese  contracts  from  the 
Navy  Board,  and  his  executors  had  received  those  sums,  Belcher  could 
not  have  recovered  them.  'I'hat  never  could  have  been  the  intention  of 
the  parties.  It  being  shewn  that  the  covenant  reaches  the  executor,  this 
is  to  be  considered  as  if  he,  the  executor,  had  covenanted  that  the  plain- 
tiff should  receive  the  money  without  any  interruption.  The  breach 
therefore  is  well  assigned;  the  covenant  names  the  executor,  and  the 
breach  is,  that  the  executor  interrupted.  Upon  tliis  point  they  cited 
Harivood  v.  Hilliftrd,  2  Mod.  209;  Jtnnnymons,  Skin.  39;  Penning 
v.  Ladij  Plat,  Cro.  Jac.  383;  Ilellamij  \'.  linsscll.  Sir  T.  Jones,  18f). 
But  even  if  the  broach  be  too  general,  it  shall  be  aided  after  verdict  for 
the  plaintiff,  Kuii^hl  v.  Leach,  Comb.  204. 

Denmun,  Brodrick,  and  Manning  contra.  I'^irst,  the  judgment 
ought  to  he  arrested,  because  the  covenant  on  which  the  fiisl  breach  is 
assigned  applies  to  acts  done  by  the  testator  only,  and  not  to  acts  done 
by  his  executor;  and  the  broach  assigned  is  in  respect  of  an  act  done 
by  the  executor.  The  covenant  is,  "that  for  and  notwithstanding  any 
act  done  by  James  Brymer,  it  shall  be  lawful  for  Belcher  to  receive  the 
money  without  any  let  or  interruption  of  him  James  Brym(;r,  his  execu- 
tors, &.C."  The  testator  i)inds  himself  and  his  executors  ;iu;;iinst  any  act 
(lone  by  him  James  Brymer  in  his  lifetime.  [Lord  Tcntrrden  (/.  J. 
Must  not  the  words  "for  and  notwithstanding  any  act  done,"  be  reject- 
ed as  insensible,  they  being  wholly   inconsistent  with  the  subsequent 

VOL.   XV.  2j 


191  Helcheu  v.  Sik.i:s.   E.  T.  1828. 

part  of  the  coronant  by  whicli  Brynicr  ajrrees  lliat  Belcher  shall  receive 
the  money  without  the  interruption  of  him  or  his  executors? — Bayhy 
J.  IMa}-  not  the  meaning;  be,  lor  and  notwithstanding  any  act  done  before 
the  execution  of  the  deed  ?]  Tiie  words  arc  not  in  the  ])ast  tense.  The 
particular  sense  of  those  words  must  be  collected  from  the  context.  Upon 
this  point  they  cited  Rich  v.  Rich,  Cro.  Eliz.  43;  Tiroughlon  v.  Con- 
tvoy,  Dyer,  240;  Ford  v.  Wilson,  8  Taunt.  543;  Nind  v.  Marshall, 
1  B.  &.  B.  319.  The  objection  to  the  second  and  third  breaches  is 
stronger.  In  the  covenants  on  which  those  breaches  are  assigned,  Bry- 
mcr  covenants  merely  for  the  act  of  himself,  it  is  the  same  thing  as  if  he 
covenanted  for  the  act  of  John  Styles.  Any  act  done.by  CHiy  other  person 
would  not  be  a  breach  of  that  covenant. 

The  principal  question  depends  on  the  construction  of  the  deed. 
Belcher  in  this  action  of  covenant  at  all  events  can  only  recover  a  moiety 
of  the  sums  received  in  respect  of  those  contracts  in  which  he  and  Bry- 
mcr  were  jointly  interested.  The  other  moiety  being  his  own  share  of 
the  proceeds  of  the  contract,  belongs  to  him  independently  of  the  deed, 
and  must  be  recovered  in  an  action  for  money  had  and  received.  The 
arbitrator  has  found  three  distinct  classes  of  sums  received,  the  first  on 
account  of  a  contract  in  which  Belcher  was  solely  interested;  that  sum 
also  belongs  to  Belcher  independently  of  any  covenant,  and  cannot, 
therefore,  be  recovered  in  this  action;  the  second,  on  account  of  con- 
tracts in  which  they  were  jointly  interested;  and  the  third,  on  account 
of  contracts  in  which  Brymer  was  separately  interested.  The  intention 
of  the  parties  must  undoubtedly  be  collected  from  the  whole  deed.  The 
difficulty  is  created  by  the  introduction  into  the  recitals  of  the  unneces- 
sary words  "respectively  or  either  of  them;"  for  if  full  effect  be  given 
to  those  words,  the  construction  must  be  that  the  deed  extends  to  sepa- 
rate contracts.  Such  a  construction  is,  however,  at  variance  with  the 
general  intention  of  the  deed.  If  those  words  be  rejected  as  surplusage, 
then  all  the  provisions  of  the  deed  will  be  consistent  with  each  other,  and 
it  will  be  clear  that  all  that  was  intended  to  be  assigned  was  the  interest 
of  Brymer  in  those  contracts  in  which  he  and  the  plaintiff  Belcher  were 
jointly  interested.  The  primary  object  of  the  deed  was  to  dissolve  and 
determine  the  partnership  of  liclcher  and  J.  Brymer,  in  contracts  for 
victualling  his  Majesty's  navy.  It  is  true  that  the  deed  recites  that  it 
had  been  agreed  to  dissolve  and  determine  the  co-partnership  entered 
into  by  them  for  carrying  on  the  business  of  the  said  contract  and  all 
other  contracts  in  which  they  or  either  of  them  \n ere  in  any  ways  inter- 
ested or  concerned.  The  words  "or  either  of  them"  here  introduced, 
are  insensible,  and  must  be  rejected,  because  there  could  not  be  a  part- 
nership in  a  contract  in  which  one  only  was  interested.  The.  deed  then 
recites,  that  James  Brymer's  share  in  the  property  belonging  to  the  part- 
nership should  be  estimated  at  50,000/.,  and  should  betaken  by  Belcher 
at  that  sum.  That  was  the  calculated  value  of  Brymer's  interest  in  the 
partnership  property.  It  follows,  therefore,  that  no  consideration  was 
paid  to  Brymer  for  his  interest  in  the  separate  property.  It  is  true,  that 
in  the  clause  of  indemnity,  the  words  "  or  either  of  them"  again  occui-, 
but  those  words  must  be  rejected,  and  then  that  clause  will  correspond 
with  the  general  intention  of  the  deed.  By  the  operative  part  of  the 
deed,  the  parties  dissolve  and  determine  the  said  copartnership  so  entered 
into,  and  now  or  lately  subsisting  between  them  ibr  supplying  his  Ma- 
jesty's ships  with  provisions  under  or  by  virtue  of  the  said  recited  con- 
tract, and  of  all  other  contracts  in  which  the  said  James  Brvmer  and 


8  Barnewall  &  Cresswell,  185.  195 

Andrew  Belcher,  or  either  of  them,  had  any  interest  or  concern.  Now, 
thou<Th  the  words  <'or  either  of  them"  occur  here,  the  dissolution  must 
have  reference  to  contracts  in  which  the  parties  were  jointly  concerned. 
By  the  assigning  part  of  the  deed,  Belcher  is  to  have  the  share  of  Bry- 
mer  in  all  the  debts  due  and  owing  to  them  (not  to  either  of  them) 
under  and  by  virtue  of  the  several  contracts;  and  the  word  premises 
which  afterwards  occurs,  refers  to  the  debts  last  before  mentioned.  There 
then  follows  a  power  to  Belcher  to  recover  and  give  discharges  for  the 
said  debts.  That  must  mean  partnership  debts;  for  if  it  were  intended 
to  authorize  Belcher  to  receive  money  due  to  Brymeron  those  contracts 
in  which  he  was  separately  interested,  a  power  of  attorney  would  have 
been  executed  for  that  purpose.  The  omission  of  such  a  power  of  attor- 
ney is  conclusive  to  shew  that  the  separate  interest  of  James  Brymer  was 
not  intended  to  be  conveyed. 

Lord  Tenterden  C.  J.  I  am  of  opinion  that  the  plaintiff  is  entitled 
to  recover  the  whole  sum  upon  the  first  breach.  Tiie  principal  question 
depends  on  the  construction  of  the  deed,  and  in  deciding  it,  we  must 
not  merely  consider  the  situation  of  the  parties  before  the  execution  of 
the  deed,  but  the  situation  in  which  they  chose  to  place  themselves  by 
that  deed.  The  arbitrator  in  his  award  states,  that  James  Brymer  and 
Belcher  (the  plaintiff)  had  been  concerned  in  conducting  business  to- 
gether as  contractors  for  the  navy  ;  that  in  some  contracts  James  Brymer 
was  solely  interested  as  contractor,  in  other  contracts  the  plaintiff  was 
solely  interested  as  contractor;  in  some  they  were  jointly  interested  as 
partners  and  contractors;  they  both,  however,  had  been  concerned  in  all 
the  contracts,  for  the  plaintiff  had  been  agent  in  managing  those  con- 
tracts in  which  Brymer  was  solely  interested,  and  Brymer  had  been 
agent  in  managing  those  contracts  in  which  the  plaintiff  was  solely  in- 
terested. Under  these  circumstances,  on  the  10th  of  March  1814,  they 
dissolve  partnership  by  the  deed  set  out  in  the  award.  After  stating  the 
dates  of  the  several  contracts,  and  the  sums  due  from  the  Navy  Board 
and  received  by  A.  Brymer  upon  them  respectively;  the  arbitrator 
states,  that  it  was  contended  before  him  that  under  the  true  construction 
of  the  deed  all  these  several  contracts  were  cor/Stituted  by  the  parties  as 
between  themselves  partnership  contracts,  and  were  included  in  the  pro- 
visions of  the  deed.  I  can  easily  understand  why  they  should  wish  to 
do  this.  Unlesssomething  of  this  kind  was  done,  it  would  have  been 
necessary  to  take  an  account  of  every  contract  ih  which  they  were  se- 
parately concerned,  and  in  which  the  relation  of  ])rincipal  and  agent 
subsisted  between  them.  That  not  having  been  done,  it  may  reasonably 
be  supposed  that  the  parlies  might,  in  order  to  put  an  end  to  all  contracts, 
elect  to  consider  all  contracts  as  partnt^rship  concerns;  and  looking  to 
the  whole  of  this  deed,  I  think  that  intention  may  bu  colhiclcd  from  lis 
different  recitals  and  provisions.  The  deed  recites  a  contract  llit-n  in 
esse,  which  had  been  made  in  May  1813,  and  that  the  plaintiffand  Bry- 
meron the  1 7th  of  September  181.3  agrcetPto  dissolve  lheco|)artncrship 
for  carrying  on  the  business  of  the  said  contract,  and  all  other  contracts 
entered  into  with  the  commissioners  for  victualling  the  navy  by  Brymer 
or  the  plaintiff,  and  in  which  liicy  or  either  of  thnin  wnrc  in  any  ways 
interested  or  concerned  ;  and  all  otlinr  copartnerships  whatsoever  «ub- 
sisting  between  them.  These  latter  words  must  mean  partnerships  in 
other  contracts  besides  those  entered  into  with  the  conimissioruirs  of  the 
.,navy.      It  seems  to  me  from  thcrccil;d,  that  liiere  was  a  manifest  intent 


196  Belcher  v.  Sikes.  E.  T.  1828. 

to  treat  all  the  contracts  as  having  been  copartnership  transactions.      I 
cannot  otlierwise  lind  any  sense  lor   tlie    words,  •'  or  either  of  them," 
which  occur  not  only  in  the  recital,  but  in   the  other  parts  of  the  deed. 
The  next  recital  is   that  upon  the  treaty  for  the  dissolution,    **  it  was 
agreed  that  the  share  of  Brymcr  in   the  money  and  property  belonging 
to  the  said  copartnership,  or  to  them  the  said  parties  on  account  thereof, 
should  be  estimated    at  50,000/.  and  be  taken  by  the  plaintiff  at  that 
sum  ;  and  that  it  had  been  agreed  that  the  plaintiff  should  by    bond    in- 
demnify Brymer  against  all  losses  and  damages  by  reason  of  his  having 
entered   into    the  recited   contract,  and  by  reason  of  all  other  contracts 
eniered  into  by   Brymcr  and  the  plaintiff  respectively,   and   in    which 
they  or  either  of  them  had  any  interest  or  concern."  Now,  why  should 
Belcher  become  bound  to   indemnify  Brymer   against   all  damages  by 
reason  of  the  separate  contracts  of  Brymer,  unless  the  intent  of  the  deed 
was  that  all  the  separate  contracts  of  Brymer  should,   as    between    the 
parties,  be  considered  as  joint  contracts  ?     Then  by  the  operative   part 
of  the  deed,  the  parties  dissolve  the  cofiartnership  entered  into  between 
them  for  supplying  his  Majesty's  ships,  under  or  by  virtue  of  the  recited 
contract  and  all  other  contracts  in  which  they  or  either  of  them  had  any 
concern.     Strictly  speaking,  there  could  not  have  been  a  partnership  in 
a  contract  in  which  one  party  only    was  interested.     But  the   parties 
(who  had  been  partners  in  some  contracts)  might  have  agreed   that   be- 
tween themselves,  all  the  contracts  which  either  had  entered  into  in  his 
own  name  and  on  his  own    account,   should    be  considered  partnership 
contracts.     They  then  release  each  other  from  all  actions,  &c.  not  only 
in  respect  of  the  recited  contract,  but  of  all  other  contracts   in  which 
Brymer  and  the  plaintiff,  or  either  of  them,  had  any  interest   whatso- 
ever.    The  release,    therefore,  extends   to  contracts  in  which    Brymer 
was  separately  interested.     Then  come  the  words  of  assignment,  Bry- 
mer assigns  to  the  plaintiff  all  the  share  and  interest  of  him  Brymer,    of 
and  in  all  the  debts  then  due  and  owing  to  them  the  plaintiff  and  Bry- 
mer by  virtue  of  the  same  several  contracts  or  otherwise;  and  all  bonds 
and  bills  relating  to  the  said  contract,  debts,  and  sums  of  money,  or  any 
of  them;  and  of  and  in  all  other  the  monies  of  or  belonging  to  the  plain- 
tiff and  Brymer  as  such  copartners  respectively,  and  all  the  right,  title, 
and  interest,  property,  claim,  and  demand  whatsoever  of   him  Brymer, 
of,  in,  to,  from,  out,  or  in  respect  of  the  premises.     The  subject  matter 
of  the  assignment  is  there  described  by   words  of  reference.      We  must 
look  back  to  the  antecedent  parts  of  the  deed,  to  learn  what  those  words 
refer  to,  and  then  it  appears  that  the  interest  of  Brymer,  in    respect  of 
the  premises,  comprehends  his  right  to  receive  any  sums  due  from  go- 
vernment in  respect  of  the  contracts,  in  which  he  had  been   separately 
interested.     My  opinion  is,  that  whatever  may  have  been  the  interest 
of  the  parties  originally  in  the  several  contracts,  they  did  by  this  deed 
consent  to  be  considered  as  copartners,  from  the  first,   in  all  contracts 
entered  into  by  both  conjo'intly  or  by  either  of  them  on  his  separate 
account,  and  that  they  adopted  this   as  the  best  mode  of  settling  their 
disputes.     The  remaining  question  is.  Whether  the  breach  of  covenant 
is  well  assigned  ?  The  breach  is,  that  the  executor  of  James  Brymer  re- 
ceived from  the  commissioners  of  the  navy  a  sum  of  money  in  respect 
of  the  contracts  mentioned  in  the  deed,  and  thereby  prevented  the  plain- 
tiff from   receiving   the  same.    The  objection   is,  that  the  covenant  ex- 
tends only  to  acts  done  by  Brymer  himself,   and  thatthe  receipt  of  the 


8  Baunewall  &  Cressvvell,  185.  197 

money  charged  in  the  breach  being  an  act  done  by  the  executor,  is  not 
within  the  covenant.  It  seems  to  me,  that  the  covenant  is  not  confined 
to  acts  done  by  James  Brymer.  Tiie  words,  "for  and  notwithstanding 
any  act  done  by  James  Brymer,"  seem  to  have  been  copied  by  the  per- 
son who  drew  this  deed  from  a  covenant  for  title  in  a  conveyance  of 
real  property.  These  words  are  wholly  inconsistent  with  the  words  in 
the  latter  part  of  the  covenant,  by  which  Belcher  is  authorized  to  re- 
ceive the  money,  &.c.  assigned  by  the  indenture  without  the  interrup- 
tion of  James  Brymer,  his  executors,  or  any  persons  claiming  under 
him  or  them.  They  cannot  both  stand  without  making  the  covenant 
insensible.  One  or  the  other,  therefore,  must  be  rejected,  and  I  think 
that  as  the  subject  matter  of  this  covenant  is  one  in  respect  of  which  an 
executor  is  generally  liable,  the  words  "for  and  notwithstanding  any 
act  done  by  James  Brymer,"  ought  to  be  rejected  ;  and  then  the  cove- 
nant will  be  that  Belcher  shall  receive  the  money  without  the  inter- 
ruption of  James  Brymer,  or  his  executors,  and  the  breach  is  well  as- 
signed. The  rule  for  setting  aside  the  award  and  arresting  the  judg- 
ment must  therefore  be  discharged. 

Bayley  J.  I  think  the  arbitrator  has  properly  decided  that  those 
contracts  which  were  not  originally  partnership  contracts,  were  made  so 
by  the  parties  when  they  executed  this  deed.  At  the  time  when  the 
deed  was  executed,  there  had  been  some  contracts  in  which  the  parties 
had  been  jointly  interested,  and  others  in  which  each  of  them  had  been 
separately  interested ;  but  in  the  latter,  one  of  the  parties  had  acted  as  agent 
for  the  other.  They  were  in  some  degree  concerned  together  in  all  con- 
tracts. This  being  the  state  of  things  at  the  time  when  the  deed  was 
executed,  it  would  have  been  necessary  to  make  a  provision  that  there 
should  be  taken  an  account  of  the  sums  each  partner  was  entitled  to  re- 
ceive on  the  joint  as  well  as  on  the  separate  contracts  in  which  one  had 
acted  as  agent  for  the  other.  If  this  deed  had  not  been  intended  to  em- 
brace all  the  contracts,  it  would  undoubtedly  have  made  provision  for  the 
winding  up  of  the  accounts  between  the  parties,  or  at  least  it  would  not 
have  altogether  prevented  such  a  future  settlement  of  accounts.  Now 
the  clause  by  which  it  is  stipulated  that  mutual  releases  shall  be  given, 
shews  clearly  that  it  was  the  intention  of  the  parties  that  tlicre  should  be 
no  future  reckoning  or  accounting  between  the  parties.  By  that  clause 
each  party  discharges  (he  other  from  all  accounts,  reckonings,  &c.  which 
either  of  them  had  or  might  thereafter  have,  for  or  by  reason  or  on  ac- 
count of  the  said  copartnership,  or  on  any  other  account  whatsoever." 
Thisclause  entirely  prevents  all  future  rcckonin<i;sbetween  the  parties  upon 
any  contract  entered  into  by  one  or  the  other.  It  is  quite  clear,  that  l)iit  for 
this  clause  there  must  have  been  reckonings  between  the  parties.  It, 
therefore,  explains  the  rest  of  the  deed,  and  shews  clearly  that  the  word 
resprcfivc/t/  and  the  words  or  cither  of  llicin,  which  occur  frerpiently 
in  the  deed,  were  introduced  intentionally,  and  not  by  mistake.  It  seems 
to  me,  therefore,  that  the  plaintiff  was  entitled  to  receive  all  monies  due 
from  the  Navy  Board  on  contracts  in  which  Brymer  was  either  .se|)arate- 
ly  or  jointly  interested.  I  think  also  that  Alexander  Brymer,  the  ex- 
ecutor of  James  Brymer,  having  wrongfully  received  the  money  which 
the  plaintiff  ought  to  have  received,  has  comniitted  a  breach  of  covenant. 
The  words  "for  and  notwithstanding  any  act  done,"  may  perhaps  bo 
understood  to  refer  to  an  act  already  rltnie  at  the  time  of  the  execution  of 
the  deed,  or,  if  they  will  not  bear  that  sens^',  they  ought  to  be  rejected. 


198       Groocock  v.  Cooper.  E.  T.  1828. 

LiTTLEPALE  J.  Assuming  the  arbitrator's  construction  of  this  deed 
to  be  correct,  I  think  that  there  is  no  objection  to  entering  the  verdict 
for  the  entire  sum  upon  the  first  breach  assigned.  The  words  "not- 
withstanding any  act,  deed,  matter,  or  tiling  done  by  James  Brymcr," 
if  they  had  stood  by  themselves  would  have  confined  the  covenant  to 
acts  done  by  him  only.  The  words  "without  the  let,  suit,  or  interrup- 
tion of  him  James  Brymcr,  his  executors,  or  administrators,"  &c.  extend 
the  covenant  to  acts  done  by  his  executors.  They  are  clearly  sufficient 
to  make  his  estate  responsible;  and  if  it  were  necessary,  in  order  to  make 
the  covenant  consistent,  to  reject  any  of  the  words,  1  should  be  disposed 
to  reject  the  first  words  rather  than  the  latter,  I  entertain  more  doubt 
as  to  the  second  and  third  breaches;  but  it  is  unnecessary  to  decide  whe- 
ther they  are  good  or  not.  Then  it  is  said  that  Belcher  is  only  entitled 
to  recover  a  moiety.  1  think  it  is  not  necessary  that  an  action  for  money 
had  and  received  should  be  brought,  or  a  bill  in  equity  should  be  filed, 
in  order  to  enable  the  plaintiff  to  recover  the  sums  due  to  him  in  his  own 
right,  independently  of  any  covenant  in  the  deed;  inasmuch  as  the  whole 
is  mixed  up  together,  and  the  damages  are  entire.  But  I  own  I  have  con- 
siderable doubt  as  to  the  true  construction  to  be  put  on  this  deed.  I  ad- 
mit that  it  is  reasonable  that  the  supposed  arrangement  should  have  taken 
place.  I  doubt,  however,  whether  the  language  of  the  deed  is  sufficient 
to  effect  such  a  purpose.  It  is  a  rule  in  construing  deeds  to  give  effect 
to  all  the  words,  and  undoubtedly  if  full  effect  be  given  to  the  words  "or 
either  of  Ihetti,"  there  is  an  insuperable  objection  to  any  other  construc- 
tion of  the  deed  than  that  put  upon  it  by  my  Lord  and  my  Brother  Buyley. 
But  the  language  of  the  operative  part  of  the  deed  is  at  variance  with 
such  a  construction.  The  parties  by  mutual  consent  dissolve  the  co- 
partnership for  supplying  his  Majesty's  ships  with  sea  provisions  under 
or  by  virtue  of  the  said  recited  contract,  and  of  all  other  contracts  in 
which  the  said  A,  Belcher  and  James  Brymer  had  any  interest  or  con- 
cern. Now  how  could  they  dissolve  a  partnership  in  a  contract  in  which 
one  only  was  interested?  Besides,  50,000/.  was  the  consideration  paid 
to  Brymer  for  his  assigning  his  interest  to  Belcher  in  the  property  be- 
longing to  the  partnersiiip.  There  was  no  consideration  for  his  assign- 
ing his  interest  in  the  separate  contracts.  From  these  parts  of  the  deed 
I  should  think  it  was  not  intended  to  include  contracts  in  which  either 
party  was  separately  interested.  But,  on  the  other  hand,  there  is  a 
difficulty  created  by  the  indemnity  clause;  for  Belcher  is  to  indemnify 
Brymer  against  all  claims  made  by  govei'nment  in  respect  not  only  of 
the  joint  but  of  the  separate  contracts.  That  clause  rather  shews  that 
the  interest  of  Brymer  in  the  separate  contracts  was  in  the  contemplation 
of  the  parties.  And  when  I  find  the  words  "or  either  of  them"  occur- 
ring so  frequently  in  this  deed,  I  cannot  say  that  I  differ  from  my  Lord 
and  my  Brother  Buyley,  but  only  that  I  entertain  considerable  doubts. 

Rule  discharged. (a) 

{a)  This  case  was  argued  and  determined  on  the  1st  of  May,  but  the  report  of  it 
was  unavoidaljly  postponed. 


GROOCOCK  V.  COOPER  and  Others.— p.  2U. 

By  the  6  G.  4.  c.  16.  s.  3.3.  commissioners  of  banknipt  are  authorized,  by  writing 
under  their  hands,  to  summon  before  them  certain  personsj  and  if  any  such 


8  BaRNEWALL  &  CUESSWELL,  211.  199 

persons  so  summoned  shall  not  come  before  them  at  the  time  appointed,  hav- 
ing no  lawful  impediment  made  known  to  them  at  the  time  of  their  meeting', 
and  allowed  by  them,  it  shall  be  lawful  for  them,  by  warrant  under  their  hands 
and  seals,  to  authorize  the  person  therein  named  to  apprehend  such  person, 
and  bring  him  before  them  to  be  examined:  Held,  that  in  order  to  justify  the 
commissioners  in  issuing  their  warrant  for  the  apprehension  of  a  witness  to 
■whom  they  had  directed  a  summons,  it  was  necessary  that  a  reasonable  time 
should  intervene  between  the  service  of  the  summons  and  the  time  when  the 
witness  was  thereby  required  to  attend,  and  that  the  question,  whether  the 
service  of  the  summons  was  in  that  respect  reasonable  or  not,  was  a  question  of 
fact  to  be  submitted  to  a  jury,  Semblc,  That  the  commissioners  are  not  bound 
to  have  information  on  oath  of  the  service  of  the  summons  before  they  issue 
their  warrant,  but  that  it  is  sufficient  if  the  summons  be  actually  served. 

Trespass  for  false  imprisonment,  brought  by  the  plaintiff  against  the 
defendants,  who  were  commissioners  under  a  commission  of  bankrupt 
issued  against  JNIessrs.  Silvey  and  Sanderson.  At  the  trial  before  Lord 
Tenterden  C.  J.,  at  the  London  sittings  after  Trinity  term,  1S27,  it  ap- 
peared, that  on  Monday,  the  17th  of  April,  1S26,  at  five  o'clock  in  the 
evening,  the  plaintiff  was  served  in  London  with  a  summons,  whereby 
he  was  required  to  attend  before  the  defendants  at  Norwich  on  the  fol- 
lowing morning  at  10  o'clock,  to  give  evidence  before  the  commissioners 
under  the  commission  against  S.  and  S.  The  plaintiff  told  the  person 
who  served  the  summons  that  it  was  impossible  for  him  (the  plaintiff) 
to  attend  on  so  short  a  notice,  as  he  had  an  engagement  to  attend  a  gen- 
tleman from  the  West  Indies  fwhom  he  named)  on  the  following  morn- 
ing, to  select  goods  for  the  Demerara  market,  and  that  he  and  that 
gentleman  had  also  to  prove  a  will  under  which  they  were  joint  execu- 
tors, and  desired  the  person  who  served  the  summons  to  write  down  to 
the  commissioners  to  inform  them  of  the  reasons  why  he  could  not  at- 
tend. Before  the  person  who  served  the  summons  left  the  plaintiff,  he 
tendered  him  5/.  for  his  expenses  in  obeying  the  summons.  The  plain- 
tiff also  told  the  person  who  served  the  summons,  that  if  any  day  after 
Wednesday  in  the  following  week  were  appointed  he  would  attend,  and 
begged  that  information  to  that  effect  might  be  sent  to  the  commission- 
ers. The  plaintiff  was  then  asked,  whether  the  Friday  following  would 
suit,  and  he  replied  it  would  not.  The  London  agents  to  the  solicitors 
to  the  commission  wrote  a  letter  on  the  evening  of  the  next  day  (Tuesday 
the  18th  of  April)  to  the  commissioners,  and  informed  them  of  the  serv- 
ice of  the  summons,  and  of  the  grounds  assigned  by  the  plaintilffor  not 
attending;  and  the  commissioners  having  receivcil  the  letter  on  Wednes- 
day, the  19th  of  April,  signed  a  warrant  for  taking  the  plaintiff  into  cus- 
tody, and  he  was  taken  into  custody,  by  virtueof  that  warrant,  on  Thurs- 
day the  20th  of  April,  and  conveyed  down  to  Norwich,  and  detained 
in  custofly  until  his  examination  was  closed.  It  was  proved  that  four 
coaches  left  London  for  Norwich  daily,  after  five  o'clock  in  the  evening. 
It  wasadmitted  that  plaintifl"  was  a  person  liable  to  l)e  summoned,  within 
the  6  G.  4.  c.  IG.s.  33.  (r/);  but  it  was  contendeil,  on  the  part  of  the  j)l;iin- 

(n)  Sect.  .^.l.  of  tlie  6  Ci,  4.  c.  \(\.  enacts,  "that  after  adjudication,  it  shall  he 
lawful  for  the  commissioners,  by  writing  under  their  liands,  to  summrHi  before  them 
any  person  known  f)r  suspected  t«)  have  any  of  the  estate  of  tlie  bankni|)t  in  his 
possession,  or  supposed  to  be  indebted  to  the  bankru])t,  or  any  jjcrson  wliom  the 
commissioners  believe  cai)able  of  giving  information  concerning  tlic  person,  trade, 
dealings,  or  estate  of  sik h  banknijjt,  or  concerning  any  act  of  bankruptcy  rum- 
mittcd  by  him,  or  any  informa  ion  ma'crial  to  tin-  full  disclosure  of  tiie  dealings 
of  the  banknipt;  and  it  shall  be  lawful  for  the  commii-sioners  to  require  such  per- 


200  OuoococK  V.  Cooi'Ku.   E.  T.  1828. 

tifl",  that  tlic  clofeiidants  were  not  justified  in  issuing  their  warrant,  inas- 
nuich  as  the  summons  was  not  sulliciont,  there  not  having  been  a  reasona- 
ble time,  between  the  service  of  the  summons  and  tiie  return,  for  the 
jdaintitT  to  go  down  to  Norwich,  and,  at  all  events,  that  this  was  a  ques- 
tion of  fact  to  be  submitteil  to  the  jury.  Secondly,  that  the  wairant  itself 
was  illegal,  because  the  defendants  bad  granted  it  without  having  before 
them  any  information  on  oath  of  the  service  of  the  summons;  and,  thirdly, 
that  the  sum  of  5/.  tendered  to  the  plaintiff'  for  his  expenses  was  not 
sufficient.  Lord  Tenlerden  C.  J.  was  of  opinion  that  it  was  not  neces- 
sary that  the  commissioners  should  have  information  before  them  on 
oath  of  the  service  of  the  summons,  to  justify  them  in  issuing  the  war- 
rant ;  that  in  a  superior  court  such  information  on  oath  was  necessary; 
but  no  action  would  lie  against  a  judge  of  such  a  court  for  unlawfully  issu- 
ing a  warrant.  Whereas,  if  a  p.irty  were  arrested  on  an  unlawful  war- 
rant issued  by  commissioners  of  bankrupt,  he  might  have  redress  against 
them  by  ah  action  at  law.  If  a  summons  was,  in  fact,  served,  and  no 
lawful  impediment  was  made  known  to  and  allowed  by  the  commission- 
ers, their  warrant  in  this  case  was  lawful.  If  they  acted  on  a  mere  sup- 
position that  the  summons  had  been  served,  they  did  so  at  their  peril ;  but 
if  such  a  summons  had  been  served,  and  there  was  no  lawful  impediment 
made  known  to  them,  they  would  be  justified.  Here  the  summons  was 
in  fact  served;  and  the  only  question  was.  Whether  any  lawful  impedi- 
ment was  made  known  to  and  allowed  by  the  commissioners  ?  It  seemed 
from  the  word  allowed  that  they  had  a  discretion  vested  in  them  to  say 
whether  the  impediment  made  known  to  them  was  sufficient  or  not. 
But  was  any  lawful  impediment  made  known  to  them?  The  commis- 
sioners were  informed  by  the  letter  that  the  plaintiff'had  alleged  private 
business  as  a  ground  for  not  complying  with  the  summons.  But  if  his 
private  affairs  did,  in  fact,  require  his  attention,  that  was  not  a  sufl!icient 
impediment.  The  defendant  might  have  reached  Norwich  before  the 
return  of  the  summons;  and  it  was  never  suggested  to  the  commissioners 
that  the  state  of  his  health  prevented  his  performing  the  journey  within 
the  time.  Then  there  was  no  lawful  impediment,  and  the  warrant  was 
therefore  legal.  On  these  grounds  his  Lordship  directed  a  nonsuit. 
Campbell  in  last  Michaelmas  term  obtained  a  rule  nisi  for  setting  aside 
the  nonsuit,  on  the  grounds  urged  at  the  trial. 

The  Solicitor-General  and  Alderson  on  a  former  day  in  this  term 
shewed  cause.  The  nonsuit  was  right.  The  plaintiflT  ought  to  have 
made  known  to  the  commissioners  at  their  meeting  some  lawful  im- 
pediment, and  that  ought  to  have  been  allowed  by  them.  Here  the 
only  impediment  made  known  to  the  commissioners  was,  that  the  plain- 
tiff' had  private  business  to  transact.  That  was  no  lawful  impediment. 
He  did  not  allege  that  he  was  prevented  by  ill  health;  and  there  was  am- 
ple time  between  the  service  of  the  summons  and  the  return  for  a  person 
in  sound  health  to  have  gone  to  Norwich.     Secondly,  it  was  not  neces- 

son  to  produce  books,  &c.  in  his  custody  which  may  appear  to  thcni  necessary  to 
the  verification  of  the  deposition  of  such  person,  or  to  tlie  full  disclosure  of  any  of 
the  matters  which  the  commissioners  are  authorized  to  inquire  into;  and  if  such 
person  so  summoned  shall  not  come  before  the  commissioners  at  the  time  ap- 
pointed, having  no  lawful  impediment  (made  known  to  tlie  commissioners  at  the 
time  of  their  meeting  and  allowed  by  them),  it  shall  be  lawful  for  the  commis- 
sioners, by  warrant  under  their  hands  and  seals,  to  authorize  the  person  therein 
named  for  that  purpose  to  apprehend  and  arrest  such  person,  and  bring  him  be- 
fore them  to  be  examined  as  aforesaid." 


3  Barnewall  &  Cresswell,  211.  201 

sary  that  tlie  commissioners  shouki,  in  order  to  justify  them  in  issuing 
their  warrant,  have  had  the  service  of  the  summons  proved  on  oath  be- 
fore them.  The  fact  of  the  summons  having  been  served  gives  them 
jurisdiction  to  issue  their  warrant,  and  not  the  information  of  that  fact 
on  eath.  Justices,  on  the  contrary,  are  justified  by  information  on  oath, 
\Yhether  the  fact  be  true  or  false. 

Then  as  to  the  third  point,  that  the  sum  of  51.  only  was  tendered  to 
the  plaintiff:  he  made  no  objection  at  the  time  to  the  amount  of  the  tender, 
and  this  was  not  an  impediment  made  knoxyn  to  the  commissioners.  Be- 
sides, Battyt  V.  Gresley,  8  East,  319,  is  an  authority  to  shew  that  it  is 
not  necessary,  upon  summoning  the  witness,  to  tender  his  expenses  be- 
fore hand;  though  if  he  be,  in  fact,  without  the  means  of  taking  the  jour- 
ney, it  may  be  an  excuse  for  not  obeying  the  summons. 

Sir  J.  Scarlett  and  Campbell  contra.  By  the  6  G.  4.  c.  16.  s.  33., 
the  commissioners  are  authorized  to  summon  all  persons  therein  descri- 
bed; and  if  any  such  person  so  summoned  shall  not  come  before  them  at 
the  time  appointed,  having  no  lawful  impediment  made  known  to  the 
commissioners  at  the  time  of  the  meeting,  and  allowed  by  them,  the 
commissioners  may  issue  tlieir  warrant.  The  act,  therefore,  requires 
that  the  party  shall  be  summoned  in  a  lawful  manner.  Here  the  plaintiff 
was  not  summoned  within  the  meaning  of  the  act  of  parliament;  and  if 
he  was  not  duly  summoned  he  was  not  bound  to  make  any  excuse  for 
not  attending.  This  case  must  be  considered,  therefore,  as  if  he  had 
made  none.  Suppose  a  motion  were  made  for  an  attachment  for  not 
obeying  a  subpana,  it  would  be  necessary  to  shew  that  the  subpoena  had 
been  served,  so  as  that  the  party  whose  attendance  as  a  witness  was  re- 
quired might  reasonably  be  expected  to  attend.  Then  the  question  in 
this  case  is,  whether  the  plaintiff,  who  was  summoned  at  five  o'clock  in 
the  evening,  could  reasonably  be  expected  to  attend  at  Norwich  at  ten 
o'clock  the  next  morning?  Was  he  bound  to  neglect  all  his  other  busi- 
ness? Suppose  he  were  infirm  or  in  ill  health,  would  he,  in  order  to 
reach  Norwich  at  the  hour  appointed,  be  bound  to  travel  during  the 
night?  And,  at  all  events,  whetiicr  the  service  of  the  summons  were 
reasonable  or  not  was  a  question  of  lact  which  must  depend  on  a  variety 
of  circumstances,  as  the  sex,  age,  or  state  of  health  of  the  party  sum- 
moned. It  ought  to  have  been  submitted  to  the  jury,  whether,  with 
reference  to  all  the  circumstances,  the  plaintiff  could  reasonably  be  ex- 
pected to  comply  with  a  summons  (served  at  ^wc  o'clock  in  the  evening) 
requiring  him  to  attend  at  ten  o'clock  the  next  morning  at  Norwich. 
Assuming  that  the  service  of  the  summons  was  reasonable,  the  commis- 
sioners ought  to  have  had  information  on  oath  of  the  service  of  the  sum- 
mons. A  magistrate  has  no  power  to  commit  fi)r  an  offence  without 
information  on  u:i\.h,  Morfrnn  v.  I/ughrs,  2  T.  \l. '225.  [fiai/lei/  J. 
The  only  question  there  was  whether  case  or  trespass  was  the  proper 
form  of  action.]  Lastly,  the  defendant  was  not  bound  to  obey  the  sum- 
mons without  a  tender  of  a  sum  of  money  sufficient  to  defray  bis  reasona- 
ble expenses  in  going  to  and  returning  from  Norwich,  and  51.  was  not 

^"°"S^'  Cur.  adv.  vult. 

Lord  TENTERnKN  C.  J.  We  are  of  opinion  that  the  rule  for  a  new 
trial  ought  to  be  made  absolute.  Our  opinion  is  not  founded  upon  the 
ground  that  the  commissioners  were  bound  to  have  information  on  oath 
before  them  of  the  service  of  the  summons,  or  on  the  ground  that  the  sum 

VOL.    XV.  2G 


202  Haurod  v.  Benton.  E.  T.  1828. 

tendered  to  the  plaintifl'was  insufiicient.  We  think  that  neither  of  those 
objections  ought  to  prevail;  but  the  ground  upon  which  we  think  that 
there  ought  to  be  a  new  trial  is,  that  I  ought  not  to  have  taken  upon  my- 
self to  decide  that  the  summons  which  was  served  on  the  plaintifi'  on 
Monday  evening  at  tive  o'clock,  and  by  which  he  was  required  to  at- 
tend at  Norwich  on  the  following  morning  at  ten,  was  properly  served. 
We  think  it  was  a  question  for  the  jury  to  say,  whether,  under  all  the 
circumstances  of  the  case,  the  service  of  the  summons  was  reasonable  or 
not.  And  in  order  that  that  question  may  be  submitted  to  their  con- 
sideration, the  rule  for  a  new  trial  must  be  made  absolute. 

Rule  absolute  for  a  new  trial. 


HARROD  v.  ELIAH  WISEMAN  BENTON. --p.  217. 

The  Court  will,  upon  motion,  set  aside  a  wari'antof  attorney,  judgment,  and  ex- 
ecution, on  the  ground  that  they  are  fraudulent  against  creditors,  provided  the 
facts  upon  which  the  alleged  fraud  depends  are  clearly  made  out  by  the  affi- 
davits ;  but  where  those  facts  are  disputed,  they  will  direct  an  issue  to  try 
the  question  of  fraud. 

A  RULE  nisi  had  been  obtained  in  this  case,  calling  on  the  plaintiff  and 
defendant  respectively  to  shew  cause  why  the  warrant  of  attorney  given 
to  the  plaintiff,  and  the  judgment  and  execution  and  all  proceedings 
thereon,  should  not  be  set  aside,  and  why  the  goods  taken  under  such 
execution  should  not  be  sold  by  the  sheriff  in  satisfaction  of  an  execu- 
tion issued  at  the  suit  of  Mary  Ann  Hill  Benton  ;  or  if  the  same  had 
been  sold  by  the  sheriff,  why  the  proceeds  thereof  should  not  be  paid 
over  for  the  like  purpose,  and  why  the  plaintiff  or  defendant  should  not 
pay  the  costs  of  this  application.  It  appeared  by  the  affidavits  in  sup- 
port of  the  rule,  that  Mary  Ann  Hill  Benton  had  recovered  a  verdict  in 
the  Court  of  Common  Pleas  for  60/.  against  the  defendant  at  the  sittings 
after  Hilary  term,  1828,  and  had  signed  judgment  on  the  28th  of  April  in 
that  year.  The  plaintiff  had  also  signed  his  judgment  in  this  Court 
against  the  defendant  on  that  day  by  virtue  of  a  warrant  of  attorney 
executed  on  the  24th  of  April,  but  purporting  to  bear  date  on  the  1st  of 
January.  Upon  the  affidavits  on  both  sides  it  was  a  disputed  question 
of  fact,  whether  the  warrant  of  attorney  was  given  to  the  plaintiff  with- 
out consideration,  and  whether  the  judgment  and  execution  thereon 
were  or  were  not  fraudulent,  as  intended  to  anticipate  and  defeat  the  le- 
vy which  it  was  known  was  about  to  be  made  on  behalf  of  Mary  Ann 
Hill  Benton. 

Comyn  shewed  cause.  The  Court  will  not  upon  motion  decide  the 
question  whether  the  warrant  of  attorney  given  to  the  plaintiff  and  the 
judgment  and  execution  thereon  were  fraudulent,  this  being  an  applica- 
tion not  by  the  party  giving  the  warrant  of  attorney  or  his  representa- 
tive, but  by  a  stranger,  an  execution  creditor.  There  is  no  instance  in 
the  books  of  such  an  application  ;  that  question  ought  to  be  submitted  to 
a  jury.  The  plaintiff  (M.  A.  H.  Benton)  in  the  second  execution,  who 
has  obtained  the  present  rule,  may  indemnify  the  sheriff,  and  then  the 
question  whether  the  warrant  of  attorney  was  fraudulent  may  be  tried 
by  the  present  plaintiff  in  an  action  against  the  sheriff  for  a  false  return, 
IVarmoll  v.  Young,  5  B.  &  C.  G60;  and  which  is  the  only  legitimate 
course  of  proceeding  incases  like  the  present. 


8  Barnewall  &  Cresswell,  217.  203 

•y/eer  contra.  Although  the  question  of  fraud  in  cases  of  this  descrip- 
tion is  usually  submitted  to  a  jury,  yet  the  Court  has  the  power  by  the 
13  Eliz.  c.  5.  of  deciding  summarily  where,  from  the  affidavits  on  both 
sides,  the  fraud  is  manifest.  The  Court  will  not  impose  upon  an  honest 
judgment-creditor  the  hardship  of  trying  an  action  to  establish  her  right 
to  levy  execution,  if  it  appear  that  the  other  execution  has  no  foundation 
in  a  bona  fide  debt,  but  that  the  whole  is  fabricated  for  the  express  pur- 
pose of  defeating  a  just  claim.  There  may  be  no  decision  exactly  in 
point,  but  from  the  principles  laid  down  in  several  cases,  it  is  clear  the 
Court  has  the  power  to  determine  the  question  without  the  intervention 
of  a  jury ;  and  the  courts  of  equity  have  in  some  instances  so  determined 
without  sending  the  question  to  be  tried  in  an  issue,  Lady  Arundelly. 
Phipps  and  Taunton,  10  Ves.  139;  Taylor  v.  Jones,  2  Atk.  GOO; 
Baldiuinx.  Cawthorne,  19  Ves.  166;  Meggott  \.  Mills,  1  Ld.  Raym. 
286. 

Lord  Tenterden  C.  J.  There  can  be  no  doubt  that  if  the  warrant  of 
attorney,  judgment,  and  execution,  were  not  bona  fide,  they  will  be  void 
against  creditors.  The  question  whether  they  were  fraudulent  or  not 
might  perhaps  be  tried  in  an  action  against  tlie  sheriff  for  a  fidse  return; 
but  it  is  hard  upon  the  sheriff' that  that  question  should  be  tried  at  his 
expense.  I  think  that  as  the  facts  upon  which  the  alleged  fraud  depends 
are  disputed,  the  question  ought  to  be  decided  by  a  jury  on  an  issue  to 
be  settled  between  the  parties,  though  I  am  clearly  of  opinion  that  the 
Court  has  the  power  to  determine  this  question  upon  motion  where  we 
are  satisfied  and  convinced  that  the  alleged  fraud  has  been  actually  com- 
mitted. But  this  rule  may  be  enlarged  until  the  matter  can  be  tried  by 
a  jury.  I  think  the  Court  has  a  jurisdiction  over  the  warrant  of  attor- 
ney, which  it  may  exercise  at  the  instance  of  any  party  who  has  any  in- 
terest in  supporting  it  or  in  setting  it  aside. 

It  was  afterwards  agreed,  at  the  suggestion  of  the  Court,  that  it  should 
be  referred  to  the  Master  to  enquire  into  the  validity  of  the  warrant  of 
attorney  in  the  rule  mentioned,  and  to  report  thereon  to  this  Court  next 
term  ;  and  it  was  ordered,  that,  in  the  mean  time,  the  rule  should  stand 
enlarged,  until  the  time  of  the  Master's  making  his  report. 


Ex  parte  CULLIFORD  v.  VVAHREN,  Gent.,  one,  &c.— p.  220. 

The  Court  will  not  compel  an  attoniey  to  pay  a  sum  of  money  he  has  received  in 
his  character  of  attorney  ;  he  iuivmg  after  tlie  receipt  of  tlic  money  become 
bankrupt  and  obtained  liis  certificate. 

Sir  J.  Scarlett  had  oblaincd  a  nilo,  calling  upon  the  defendant,  an 
attorney,  to  shew  cause  why  Ik;  should  not  pay  over  a  sum  of  money 
paid  by  Culliford  to  him,  as  his  attorney,  being  tlu;  amount  of  ind^rost  of 
a  mortgage  procured  by  Warren  in  ly23,  for  (vulliford,  and  which  it 
was  his  duty  to  have  transmitted  to  the  niorfgagcp.  It  a|)pearc(l,  by  the 
affidavits  against  the  rule,  iliat  after  the  receipt  of  the  money  by  the  attor- 
ney for  the  piM'|)Ose  alleged,  there  had  been  a  treaty  for  transferring  the 
mortgage,  and  that  he  had  promised  to  settle  the  interest  with  the  first 
mortgagee  at  the  time  of  the  transfer,  in  which  Culliford  had  acquiescedt 
but  that  Warren  had,  in  his  way  to  the  place  of  meeting  ap]n)int(!d  for 
transferring  the  mortgage,  been  arrested  for  debt,  and  that  he  had  subsc- 
<pjently  been  made  a  bankrupt,  and  duly  obtained  his  certificate 


204  Hasti:low  v.  Jackson.  E.  T.  18.;8. 

Jcremi/  now  slicwod  cause,  and  contended,  tliat  in  the  absence  of  any 
particular  fraud,  shewn  in  liis  character  of  attorney,  there  was  no  ground 
lor  the  interference  of  the  Court;  but  that  Culliford  ouglil  to  be  left  to 
his  remedy  at  law,  and  come  in  with  the  general  creditors. 

Lord  Tentkrhen  C.  J.  We  sec  notiiing  in  this  case  which  ought 
to  deprive  tlic  attorney  of  the  jirivilege  of  i)is  certificate. 

Bayley  .f.  If  an  action  were  brougiit  against  Warren  for  money  had 
and  received,  the  certificate  might  be  pleaded  in  bar. 

Rule  discharged. 


HASTELOW  V.  JACKSON.(flj— p.  221. 

\V'here  A.  and  B.  deposited  money  in  the  hands  of  a  stake-holder  to  abide  the 
event  of  a  boxini^-match  between  them;  and  after  the  battle  A.  claimed  the 
whole  sum  from  the  stake-holder,  and  threatened  liim  with  an  action  if  he  paid 
it  over  to  B.,  which  he  nevertheless  did,  by  the  direction  of  the  umpire:  Held, 
that  A.  was  entitled  to  recover  from  him  his  own  stake,  as  money  had  and  re- 
ceived to  his  use. 

Assumpsit  for  money  had  and  received.  Plea,  the  general  issue.  At 
the  trial  before  HolroydZ.,  at  the  Summer  assizes  for  Nottingham,  1827, 
it  appeared,  that  the  plaintiffand  one  Wilcoxon  had  each  deposited  20/. 
in  the  hands  of  the  defendant,  to  abide  the  event  of  a  boxing-match  be- 
tween them.  The  battle  was  fought,  and  a  dispute  arose  as  to  which 
was  the  winner;  two  referees  and  an  umpire  were  chosen,  who  decided 
in  favour  of  Wilcoxon.  The  plaintiff  then  claimed  the  40/.  from  the 
defendant,  and  gave  him  notice  that  if  he  paid  it  over  to  Wilcoxon,  he 
should  bring  an  action  to  recover  it.  The  defendant,  however,  after- 
wards, acting  upon  the  decision  of  the  umpire,  paid  over  the  money. 
At  the  trial  the  plaintiff  claimed  only  the  20/.  deposited  by  him;  and 
for  the  defendant  it  was  contended,  that  the  plaintiff  could  not  recover 
at  all,  for  he  had  never  given  notice  of  an  intention  to  rescind  the  illegal 
wager,  but  had  affirmed  it,  by  claiming  the  whole  of  the  stakes,  and  in- 
sisting that  he  was  the  winner  of  the  battle.  The  learned  Judge  over- 
ruled the  objection,  and  the  plaintiff  had  a  verdict  for  20/.  In  Michael- 
mas term  a  rule  nisi  for  a  new  trial  was  granted,  against  which 

A'.  R.  Clarke  shewed  cause,  and  cited  Cotton  v.  Thurland,  5  T.  R. 
405;  Smith  v.  Bickmore,  4  Taunt.  474;  Bale  v.  Carlwrighl,  7  Price, 
540;  Howson  v.  Hancock,  8  T.  R.  575. 

Reader  and  Humphrey  contra,  referred  to  Lacaussade  v.  White,  7 
T.  R.  535;  Howson  v.  Hancock,  8  T,  R.  575.  [Bay ley  J.  According 
to  my  note  of  Howson  v.  Hancock,  it  proceeded  entirely  on  the  ground 
that  the  plaintiff  had  expressly  assented  to  the  money  being  paid  over.] 
Ix)wry  v.  Bourdieu,  2  Doug.  468;  Jindree  v.  Fletcher,  3  T.  R.  266; 
Morck  V.  Jlbel,  3  B.  &  P.  35;  Vandyke  v.  Hewitt,  1  East,  96;  Lub- 
bock \.  Potts,  7  East,  449;  Tenant  v.  Elliott,  1  B.  &  P.  3;  Farmer 
V.  Russell,  1  B.  &  P.  296. 

Bayley  J.  I  am  of  opinion  that  this  rule  must  be  discharged.  The 
cases  of  Tenant  v.  Elliott  and  Farmer  v.  Russell  do  not  prove  that 
the  winner  of  an  illegal  wager  can  recover  the  whole  of  the  stakes  from 

(a)  The  Judges  of  this  Court  sat,  as  on  former  occasions,  from  Tuesday,  May 
20th,  until  Thursday,  June  5th,  inclusive.  During  that  period  this  and  the  follow- 
ing cases  were  argn^d  and  determined. 


S  BaRNEWALL  8<.  CUESSWELL,   221.  205 

the  holder,  but  only  that  when  Ihe  loser  has  paid  the  money  into  the 
hands  ot"  an  agent  lor  tiie  winner,  the  agent  cannot  set  up  the  illegality 
against  tlie  claim  of  his  principal.  Tiiose  cases  may,  therefore,  be  laid 
out  of  consideration;  and  from  all  the  others  which  have  been  cited  it  ap- 
pears that  there  is  a  material  diiference  between  actions  by  one  party  to 
an  illegal  contract  against  the  other,  and  those  against  a  stake-holder. 
If  money  has  been  paid  upon  such  a  contract  by  one  party  to  the  other, 
he  cannot  recover  it  unless  he  rescinds  the  contract  while_  it  remains 
executory.  That  it  may,  as  between  the  parties,  be  rescinded  before  the 
event  happens  has  been  established  by  a  variety  of  cases,  Lubbock  v. 
Potts,  Vandyke  v.  Hewitt,  Lowry  v.  Bourdieii,  and  Jiubert  v. 
Walsh;  nor  am  I  aware  of  any  decision  to  the  contrary  except  that  of 
Lacaussade  v.  White,  which  cannot,  I  think,  be  supported;  and  indeed 
it  appears  to  have  proceeded  on  the  supposition  that  the  defendant  was 
a  stake-holder,  in  which  case  it  would  have  been  right.  It  is  too  late 
now  to  consider  what  would  have  been  the  best  rule  on  this  subject.  It 
might  have  been  proper  to  say  that  the  party  to  a  wager  on  an  illegal  act, 
after  he  had  done  the  act,  should  not  recover  his  stake.  But  Cotton  v. 
Thurland,  followed  by  Smith  v.  Bickmore,  has  established  that,  not- 
withstanding the  event  has  been  decided,  and  the  party  has  concurred  in 
doing  the  illegal  act,  he  shall  be  allowed  to  recover  his  own  stake.  The 
case  o(  Smith  v.  Bickmore  was  decided  long  after  the  other,  and  at  a 
time  when  the  distinction  had  been  taken  between  actions  against  the 
party  and  the  stake-holder;  and  it  is  now  a  settled  rule  that  where  a  wa- 
ger has  been  laid  on  the  event  of  a  boxing-match  either  party  may  recover 
his  own  stake  from  the  holder.  It  has  been  urged  that  a  decision  for 
the  plaintiff  in  the  present  case  would  go  beyond  all  former  cases,  for 
that  the  money  had  been  paid  over  before  the  action  was  brought,  and 
the  plaintilfhad  done  no  act  to  rescind  the  wager,  nor  had  ever  intima- 
ted that  he  claimed  his  own  money,  and  that  only.  But  if  a  stake-holder 
pays  over  money  without  authority  from  the  party,  and  in  opposi- 
tion to  his  desire,  he  does  so  at  his  own  peril.  In  Howson  v.  Hancock 
the  jury  found  that  the  money  was  paid  with  the  assent  and  concurrence 
of  the  plaintiff,  the  decision,  therefore,  merely  amounted  to  this,  that 
where  money  has  been  paid  over  with  the  assent  of  the  party,  he  cannot 
get  it  back.  Here,  it  is  true,  the  whole  was  demanded:  the  defendant 
said  he  shotdd  pay  it  to  the  other  party,  the  |)I;untiif  desired  him  not  to 
do  so,  and  threatened  him  with  an  action.  Tliat  was  a  plain  expression 
of  dissent;  the  defendant  therefore  paid  over  tiie  money  at  his  own  peril, 
and  having  paid  over  what  could  not  have  been  recovered  from  him,  he 
paid  it  in  his  own  wrong.  Wilcoxon  could  not  have  recovered  more 
than  his  own  money,  without  proving  himself  the  winner,  and  that 
could  only  be  estaldished  by  evidence  of  his  having  done  an  illegal  act. 
He  therefore  could  not  have  recovered  the  money  de|)osited  by  the 
plaintiff:  and  the  defendant  having  paid  over  the  whole  after  the  plain- 
tiff's prohibition,  which  was  valid  as  to  a  moiety  of  the  stakes,  paid  over 
that  moiety  wrongfully,  and  is  liable  to  refund  it  to  the  present  plaiutifl'. 
For  these  reasons,  I  think  the  o|)inion  expressed  by  my  brother  Holroyd 
at  the  trial  was  correct,  and  tliat  this  rule  must  be  discharged. 

HoLKOvn  J.  It  appears  to  me  now  as  at  the  trial,  that  the  case  of 
payment  to  a  stakeholder  diflers  from  that  by  one  j)arty  to  the  other. 
Thcfjueslion  made  at  the  trial  was,  whether  it  was  necessary  for  the 
plaintiff  to  rescind  the  contract.     I  think  it   wai?  not;  .uul  that  he  did 


1106  Doe  d.  Long  v.  Puu;g.  E.  T.  1828. 

sufliciont  ijy  giving  notice  that  he  would  sue  the  defendant  if  he  paid 
over  the  money. 

LiTTLF-DALE  J.  I  am  entirely  of  the  same  opinion.  If  two  parties 
enter  into  an  illegal  contract,  and  money  is  paid  upon  it  by  one  to  the 
other,  that  may  be  recovered  back  before  the  execution  of  the  contract, 
but  not  afterwards.  In  the  case  of  persons  entering  into  such  a  contract 
and  paying  money  to  a  stake-holder,  if  the  event  happens  and  the  money 
is  paid  over,  without  dispute,  that  is  considered  as  a  complete  execution 
of  the  contract,  and  the  money  cannot  be  reclaimed;  but  if  the  event  has 
not  happened,  the  money  may  be  recovered.  With  respect  to  a  stake- 
holder there  is  a  third  case,  viz.  where  the  event  has  happened,  but  be- 
fore the  money  has  been  paid  over,  one  party  expresses  his  dissent  from 
the  payment.  Under  such  circumstances  he  may  recover  it;  and  perhaps 
it  may  then  be  said,  that  although  the  event  has  happened,  yet  the  con- 
tract is  not  completely  executed  until  the  money  has  been  paid  over, 
and  therefore  the  party  may  retract  at  any  time  before  that  has  been 
done. 

Rule  discharged. 


The  KING  V.  The  Inhabitants  of  WALNFLEET  ALL  SAINTS. 

p.  227. 

Since  the  59  G.  3.  c.50,  a  settlement  may  he  gained  by  a  residence  of  forty  days 
in  a  parish,  provided  the  party  comply  with  the  conditions  mentioned  in  that 
act.  And,  therefore,  where  a  pauper,  since  that  statute,  hired  land  for  a  year 
at  the  sum  of  10/.,  and  paid  that  rent,  and  occupied  the  land  for  the  whole  year, 
but  resided  only  forty  days  in  that  parish,  and  not  upon  the  land,  it  was  held, 
that  he  gained  a  settiement. 


DOE  on  the  demise  of  CHARLES  WAKEMAN  LONG  v.  HENRY 

PRIGG.— p.  231. 

Devise  to  A.  for  life,  remainder  unto  "the  surviving  children  of  W.  J.  and  J.  W., 
and  their  heirs  for  ever;  the  rents  and  profits  to  be  divided  between  them  in 
equal  proportions,  share  and  share  alike:"  Held,  that  the  word  "surviving" 
referred  to  the  testator's  death,  and  not  that  of  the  tenant  for  life. 

Ejectment  to  recover  one-seventh  share  of  certain  lands  in  the  seve- 
ral parishes  of  Ripple  and  Upton,  in  the  county  of  Worcester,  which 
the  lessor  of  the  plaintiff  claimed  to  be  entitled  to  under  the  will  of  one 
W.  Shipman.  At  the  trial  at  the  Spring  assizes  1827,  for  the  county 
of  Worcester,  the  plaintiff  was  nonsuited,  with  liberty  to  move  to  enter 
a  verdict  for  the  plaintiff,  if  this  Court  should  be  of  opinion  that  he  was 
entitled  to  recover;  and  upon  that  motion  being  made  in  the  subsequent 
term,  it  was  agreed  that  the  fiicls  should  be  stated  in  the  form  of  a  case, 
as  follows: — W.  Shipman  being  seised  in  fee  of  the  premises  in  question, 
made  his  will,  which  was  duly  executed  and  attested,  so  as  to  pass  real 
property,  and  bore  date  the  6th  day  of  February  1782;  and  by  his  will 
devised  the  premises  in  question  with  others  to  his  mother,  for  her  natu- 
ral life  only.  And  after  the  death  of  his  mother  to  his  wife,  for  her 
natural  life  only.  He  then  devised  as  follows: — "and  from  and  after 
the  decease  of  my  mother  and  wife,  I  give  and  bequeath  all  llje  above- 


8  Barnewall  &  Cressvveli.j  231.  207 

mentioned  premises  unto  the  surviving  children  of  William  Jennings, 
of  Buckley,  in  the  county  of  Worcester;  and  of  John  Warren,  of  Phelps, 
in  Twining,  Gloucestershire,  and  to  their  heirs  for  ever;  the  rents  and 
profits  to  be  divided  between  them,  in  equal  proportions,  share  and 
share  alike."  He  then  devised  other  real  property  immediately  to  his 
wife  in  fee.  The  will  further  contained  the  following  clause: — "  And 
whereas,  I  now  stand  indebted  to  JNIr,  John  Jones,  of  Lulsley  Hill, 
(which  said  John  Jones  was  the  father  of  the  testator's  wife)  in  a  consi- 
derable sum  of  money  upon  bond ;  now  if  the  said  Mr.  Jones  will  at  the 
time  of  my  death  give  up  the  said  bond  to  my  executrix  hereafter  named 
(testator's  wife),  and  not  insist  upon  the  payment  of  the  money,  all  the 
above  devises  respecting  his  daughter  stand  good;  but  if  he  demands 
payment  of  the  money,  it  is  my  will  that  all  the  above  devises  to  my 
wife  shall  be  void  and  revoked,  and  she  shall  have  nothing  but  what  was 
settled  on  her  before  marriage.  And  in  that  case  I  give  and  bequeath 
unto  my  mother  all  the  above-mentioned  estates,  real  and  personal,  for 
her  natural  life  only.  And  from  and  after  her  decease  to  the  surviving 
children  of  W.  Jennings  aforesaid  and  J.  Warren,  and  to  be  divided 
amongst  them  as  above  mentioned." 

The  testator  died  in  August  1785,  without  having  altered  or  revoked 
the  above  in  part  recited  will.  At  the  time  of  the  testator's  death,  there 
were  living,  his  mother  and  wife,  six  children  of  the  said  W.  Jennings, 
and  one  child  of  the  said  J.  Warren,  who  was  a  daughter,  and  after- 
wards married  one  Wakeman  Long,  and  was  the  mother  of  the  lessor  of 
the  plaintiff,  who  was  her  heir  at  law,  and  attained  the  age  of  twenty- 
one  years  in  September  1823.  It  did  not  appear  that  the  said  J.  Jones 
ever  claimed  his  debt,  and  the  wife  of  the  testator  took  the  estates  and 
interests  given  and  bequeathed  to  her  by  her  husband's  will,  and  enjoy- 
ed the  same  until  her  death.  The  testator's  wife,  who  was  the  surviving 
tenant  for  life,  died  in  the  year  1810.  J.  Warren's  daughter  died  in  the 
year  1803,  and  at  the  time  of  the  death  of  the  testator's  wife  in  1810, 
there  were  only  four  children  of  W.  Jennings  then  surviving.  The 
question  for  the  opinion  of  the  Court  is,  to  what  period  the  words  su7'- 
viving  children  shall  refer. 

The  case  was  argued  at  the  sittings  after  Hilary  term,  by 
Curtvood  for  the  jjlaintifT.     The  expression  "surviving  children,"  in 
this  will,  refers  to  the  period  of  the  testator's  death.  He  referred  to  Ives 
V.  Leggc,  3  T.  R.  188;  Hose  v.  /////,  3  liurr.  1881;  Doe  v.   Lawson, 
3  East,  278. 

G,  R.  Cross  contra,  cited  Neivton  v.  wli/scorigh,  19  Vcs.  531; 
Htiwes  v.  Halves,  1  Ves.  sen.  14;  Strina;er  v.  l'hilli])s,  1  Eq.  Ca.  Abr. 
292;  Hose  v.  /////;  Brown  v.  Bigu;,  7  Vcs.  279;  lloglUon  v.  Whit- 
greave,  1  J.  &.  W.  1 10";   Cripps  v.  H'olcott,  4  Mad.  11. 

Chir.  adv.  vvlt. 
Baylev  J.  now  delivered  the  jiidginont  of  the  Court.  The  fpiostion 
in  this  case  arose  upon  the  will  of^  William  Shipman,  and  depended  upon 
the  effect  of  a  limitation  in  remainder  to  the  .vi/r?;/?,'///,:,'"  children  of  Wil- 
liam Jennings  and  John  Warren  and  their  heirs.  By  the  will  the  tes- 
tator flevistd  to  his  mother  for  her  natural  life  oidy,  remainder  to  his 
wife  for  her  natural  life  only,  remainder  to  the  surviving  children  of 
William  Jennings  an<l  John  Warren,  and  their  heirs  for  ever,  the  rents 
and  profits  to  be  divided  between  them  in  rrpial  proportions,  share  and 
share  alike;  but  in  a  given  event  ho  revoked  llu?  devise  to  his  wife,  and 


208  DoK  il.  I.oNi;  V.  Piuci;.  K.  T.  1828. 

gave  to  his  mollier  lor  lior  nnlniMl  lil'c  only,  aiul  from  and  after  her  ilt'- 
ceasc  to  llic  siirviviii!^  ehildion  of  VV^illiani  .Icnnings  aforesaid,  and  John 
Warren,  and  to  be  divided  amongst  them  as  above  mentioned.  The 
])erson«,  therefore,  coming  within  the  description  of  "the  surviving 
chiUlrcn,''  &c.  were  to  take  in  possession  in  the  one  case  upon  the 
deaths  both  of  the  mother  and  wife,  and  in  the  other  case  upon  the 
death  of  the  mother  only.  The  question  is,  when  they  wore  to  take  in 
in/crest,  whether  they  wore  to  take  vested  estates  in  remainder  imme- 
iliatcly  uj)on  the  deatli  of  the  testator,  or  whether  their  estates  were  to 
be  contingent  till  the  mother  and  tiie  wife,  in  the  one  case,  and  tlie  mo- 
ther in  the  other,  died.  There  is  no  doubt  but  that  upon  an  ordinary 
limitation  by  way  of  remainder  to  a  class,  as  children,  grandchildren, 
&.(!.  all  who  arc  in  esse  at  the  lime  of  the  death  of  the  testator  take  vested 
(and  consequently  transmissible)  interests  immediately  upon  the  testa- 
tor's death,  and  that  all  who  come  in  esse  before  the  particular  estates 
end,  and  the  limitation  takes  etTect  in  possession,  are  to  be  let  in,  and 
take  a  vested  interest  as  soon  as  they  come  in  esse,  and  that  they  and 
their  representatives  will  take  as  if  they  had  been  in  esse  at  the  testa- 
tor's death.  This  is  settled  by  Baldwin  v.  Karver,  Cowp.  309;  Iio& 
v.  Perry n,  3  T.  R.  48 1;  Doe  v.  Dorvell,  5  T.  R.  518;  Meredith  v. 
Meredith,  10  P^ast,  503;  Right  y.  Creber,  5  B.  &  C.  8G6.  There  is  no 
doubt  also  but  that  a  limitation  by  way  of  remainder  to  such  children, 
&.C.  as  shall  be  in  esse  at  the  time  when  the  particular  estate  ends,  and 
the  remainder  is  to  take  eflect  in  possession,  is  a  contingent  remainder, 
because  it  depends  upon  the  event  of  any  of  such  children  continuing  in 
esse  until  the  particular  estates  end.  This  is  clear  from  Roe  v.  Briggs, 
16  East,  40G.  Had  this  devise,  therefore,  been  merely  to  the  children 
of  Jennings  and  Warren,  there  would  have  been  no  difficulty  in  the  case. 
It  would  have  fallen  within  the  class  of  cases  to  which  Baldwin  v.  Kar- 
ver belongs.  The  difficulty  arises  upon  the  addition  of  the  word  sur- 
viving, and  upon  the  meaning  to  be  given  to  that  word.  If  this  woi*d 
refers  to  the  time  of  the  death  of  the  testator,  all  the  children  who  should 
be  living  at  the  testator's  death,  and  all  who  should  come  in  esse  before 
the  life  estate  ceased,  or  their  representatives,  would  be  entitled,  and  the 
interests  would  vest  in  every  child  in  esse  at  the  testator's  death,  and 
in  every  one  who  came  in  esse  afterwards  during  the  continuance  of  the 
]iarticular  estate.  If  this  word  refers  to  the  death  of  the  survivor  of  the 
mother  and  wife  in  one  event,  or  to  the  death  of  the  mother  in  the  other, 
the  remainder  to  the  children  is  contingent,  and  the  only  persons  enti- 
tled will  be  such  children  as  were  living  when  the  wife  died.  The  law 
inclines  to  such  a  construction  as  will  tend  to  vest  a  remainder,  unless  a 
contrary  intention  appears,  because  contingent  remainders  are  in  the 
power  of  the  particular  tenant,  and  may  be  destroyed;  and  it  is  more 
likely  the  testator  should  have  intended  that  the  limitations  he  made 
should  be  secure,  than  that  they  should  be  liable  to  be  defeated';  but 
where  the  intention  is  clear  that  the  testator  meant  what  would  make 
the  remainder  contingent,  his  intention  must  prevail. 

We  have  endeavoured,  without  success,  to  find  a  case  exactly  circum- 
stanced as  this  is,  where  upon  a  devise  by  way  of  remainder  to  a  class, 
as  this  is,  words  of  survivorship  have  been  held  to  apply  to  the  death  of 
the  testator;  but  there  are  so  many  in  which  upon  a  devise  or  bequest 
to  individuals  they  have  been  held  so  to  apply,  that  we  think  we  are 
warranted  in  saying  that  that  is  the  right  construction  in  this  case.     In 


8  Baunewall  Si  Cresswell,  231.  209 

Wilson  V.  Bayley,  3  Bro.  Pari.  Ca.  19S,  wlicre  a  testator  bequeathed 
certain  leaseliolds  for  lives  and  years  for  the  benefit  of  his  two  sons, 
Mark  and  John,  and  their  issue,  but  if  they  died  unmarried  and  with- 
out issue,  his  will  was,  tliat  his  daughters,  ^lary,  Sarah,  and  Catharine, 
and  the  survivors  and  survivor  of  them,  and  their  assigns,  should  be 
permitted  to  receive  the  rents,  &.c.  as  tenants  in  common,  and  not  as 
joint  tenants,  the  House  of  Lords  decided  that  the  words  of  survivorship 
amongst  the  daughters  applied  to  the  death  of  the  testator,  not  to  the 
death  of  the  survivor  of  JMark  and  John;  and  that  upon  the  deaths  of 
Mark  and  John  without  issue,  not  only  one  daughter  who  survived 
them,  but  the  representatives  of  two  other  daughters  who  died  before 
them,  were  entitled.  In  Perry  v.  Woods,  3  Ves.  205,  where  stock 
was  bequeathed  in  trust  for  Ann  Darby  for  life,  and  if  she  died  without 
children,' the  executors  were  to  pay  the  principal  to  ^V.  and  John  Prick- 
low,  share  and  share  alike,  or  to  the  survivor  of  them,  Sir  P.  Ardciij 
Master  of  the  Rolls,  held,  that  these  words  of  survivorship  applied  to 
the  testator's  death,  not  to  Ann  Darby's;  and  that  though  John  Prick- 
low  alone  survived  Ann  Darby,  he  was  not  entitled  to  the  whole  stock, 
but  that  the  representatives  of  William  were  entitled  to  a  moiety.  Roe- 
buck v.  Dean,  4  Bro.  Cha.  Ca.  403,  is  exactly  similar:  1000/.  stock, 
bequeathed  in  trust  to  pay  the  dividends  to  E.  R.  for  life,  and  after  her 
decease  the  1000/.  to  be  equally  divided  between  five,  and  to  the  survi- 
vors or  survivor  of  them,  and  this  was  held  to  vest  in  the  five,  at  the 
death  of  the  testatrix.  In  Maberly  v.  Strode,  3  Ves.  450,  where  land 
was  devised  for  sale,  and  the  interest  of  the  produce  was  to  be  paid  to 
testator's  son  Samuel  for  life,  and  upon  his  death  the  principal  was  to  be 
transferred  to  his  children,  if  any,  otherwise  to  two  nephews  and  a  niece, 
in  equal  proportions,  share  and  share  alike,  issue  to  take  the  parent's 
share,  with  benefit  of  survivorship  between  the  nephews  and  niece: 
ant',  upon  a  question  between  a  nephew  who  survived  Samuel,  and  tho 
representative  of  the  other  nephew  and  niece,  Jlrden,  Master  of  the 
Rolls,  said,  *' On  tiie  liiind  words,  toilh  bcnefil  of  survivorship,  the 
safest  and  soundest  construction,  best  warranted  by  the  authorities,  most 
beneficial  to  the  parties,  and  most  likely  lo  have  been  intended,  was  to 
apply  thein  to  such  as  should  survive  the  testator,  not  to  let  it  remain 
in  contingency,  and  vest  only  in  such  as  should  hap|)en  to  survive  Sa- 
muel, with  the  chance  of  the  wliole  being  lost,  and  a  total  intestacy 
after  the  death  of  Samuel  occasioned."  In  Edwards  v.  Sytnons,  2 
Marsh.  2^1,  (i  Taunt.  213,  where  lands  were  devised  to  trustees  in  trusl, 
to  apply  the  rents  lo  the  maintenance  of  six  younger  children,  till  tho 
youngest,  Elizabeth,  should  attain  twenty-one,  and  on  her  attaining 
twenty-one,  then  to  the  six,  and  the  survivors  and  survivor  of  them, 
their  heirs  and  assigns  for  ever,  as  tenants  in  common,  and  one  of  the 
six  survived  the  testator,  but  died  before  Elizabeth  attained  twenty-one, 
the  Court  of  Common  Pleas  certified  to  the  ('ourt  of  Chancery  that  he 
liad  a  share,  which  at  his  death  desceiuled  upon  his  heir;  so  that  the 
C'ourt  of  Common  Pleas  must  have  considered  the  words  '<  (he  survi- 
vors and  survivor"  as  applying  to  tlie  period  of  the  testator's  death,  not 
to  the  period  of  lOlizabeth's  attaining  twenty-one.  In  L'ose  v.  ///'//, 
Burr.  1881,  which  was  cited  in  argument,  in  Doe  v.  Sjn/rrow,  \3  Kasi, 
359,  and  in  Clnylon  v.  Lome,  5  JJ.  &.  A.  G3(i,  word.s  of  survivorship 
were  referred  lo  the  period  of  the  testator's  ricatli,  not  to  any  ulterior 
time  in  the  case  of  devisf.s  of  land;  and  in  Lord  IHuilon  v.   Lord  Siif- 

VOL.    XV.  J? 


210  Doe  d.  Long  v.  Prilig.  E.  T.  1828. 

folk,  1   P.  Wms.  96,  and  other  cases  in  Chancery,  they  have  been  re- 
ferred to  the  same  period  upon  personal  bequests. 

In  many  indeed,  if  not  in  most  of  these  cases,  this  has  been  a  neces- 
sary construction,  because  the  devises  or  gifts  were  not  to  a  class,  but  to 
individuals;  they  were  to  take  as  tenants  in  common;  there  was  no  spe- 
cific definite  period  but  the  testator's  death  to  wliicli  the  words  of  sur- 
vivorship could  apply;  and  it  would  have  been  inconsistent  with  the 
tenancy  in  common  to  have  applied  them  to  any  later  period;  but  that 
objection  docs  not  apply  to  the  cases  of  JVilson  v.  Bayley,  Perry  v. 
Woods,  Mahcrly  v.  Strode,  and  Edwards  v.  Symons,  because  in  the 
first  three,  there  was  the  alternative  between  the  testator's  death  and  the 
death  of  the  tenant  for  life;  and  in  the  last,  between  the  testator's  death 
and  the  youngest  child  Elizabeth's  attaining  twenty-one.  And  the  tes- 
tator's death  is  in  this  case  so  much  the  more  rational  period,  so  much 
the  more  likely  to  have  been  intended,  and  falling  in,  as  it  does,  with 
the  rule  of  law  for  vesting  estates  as  soon  as  they  may,  instead  of  leav- 
ing them  contingent,  that  we  are  of  opinion  that  the  estate  here  vested 
in  remainder  immediately  upon  the  testator's  death,  in  the  then  chil- 
dren of  Jennings  and  Warren;  and  that  upon  the  deaths  of  tliose  who 
died  after  the  testator,  and  before  the  testator's  widow,  their  sevenths 
descended  upon  their  respective  heirs  at  law;  and,  consequently,  that 
the  lessor  of  the  plaintiff  is  entitled  to  recover  one-seventh.  A  verdict, 
therefore,  must  be  entered  accordingly,  and  the  postea  delivered  to  the 
plaintiff. 

I  have  not  entered  into  a  detailed  examination  of  the  cases  cited  for 
the  defendant,  because  no  one  of  them  is  in  point:  none  of  them  bear 
closer  upon  this  case  than  Wilson  v.  Bayley,  and  the  other  cases  I  have 
stated;  and,  as  far  as  they  differ  from  these  cases,  we  think  these  cases 
preferable. 

Postea  to  the  plaintiff. 


The  KING  V.  The  Inhabitants  of  BROMYARD.— p.  240. 

On  the  hearing  of  an  appeal  against  a  poor-rate,  the  sessions  have  no  jurisdiction 
to  quash  the  rate  for  a  defect  appearing  on  the  face  of  the  rate  itself,  unless 
that  defect  be  specified  in  the  notice  as  a  cause  of  appeal. 


The  KING  V.  The  Inhabitants  of  LOUTH.— p.  247. 

An  indenture  by  which  an  apprentice  was  bound  for  seven  years,  to  serve  A.  B. 
for  the  first  four  years,  aid  his  own  father  for  the  last  three,  to  learn  twodiflFer- 
ent  trades,  is  a  valid  indenture,  and  requires  only  one  stamp. 


The  KING  V.  The  Justices  of  WORCESTERSHIRE.— p.  254. 

In  an  order  of  justices  for  stopping  up  an  unnecessary  highway  under  the  55  G. 
3.  c.  68,  it  must  be  stated  that  it  ap])earcd  to  the  justices,  on  view,  tliat  the  way 
was  unnecessaiy  ;  and,  therefore,  an  order,  merely  stating  that  the  "justices 
had,  upon  view,  found,  or  that  it  appeared  to  them,"  that  the  way  was  linnc- 
cessary,  is  bad. 


8  Barnewall  &  Cresswell,  257.  211 


CUBIIT  V.  PORTER— p.  257. 

Tlic  common  user  of  a  wall  separating  adjoining  lands  belonging  to  different 
owners,  is  prima  facie  evidence  that  the  wall,  and  the  land  on  which  it  stands, 
belong  to  the  owners  of  those  adjoining  lands  in  equal  moieties  as  tenants  in 
common. 

Where  such  an  ancient  wall  was  pulled  down  by  one  of  the  two  tenants  in  com- 
mon, with  the  intention  of  rebuilding  the  same,  and  a  new  wall  was  built  of  a 
greater  height  than  the  old  one;  it  was  held,  that  this  was  not  such  a  total  de- 
struction of  ihe  wall  as  to  entitle  one  of  the  two  tenants  in  common  to  maintain 
trespass  against  the  other. 

Declaration  stated  that  the  defendant  on,  &c.,  at,  &c.,  broke  and 
entered  a  certain  close  of  the  phiintifT,  to  wit,  in  the  city  of  Norwich,  and 
county  of  the  same  city,  and  then  and  there  pulled  down  and  damaged  a 
great  pait  of  a  certain  wall  of  the  plaintiff,  then  standing  and  being  in  and 
upon  the  said  close,  and  the  materials  thereof,  of  the  plaintiff,  of  the  value 
of  100/.,  seized,  and  carried  away,  and  converted,  and  disposed  thereof 
to  his,  the  defendant's,  own  use;  and  also  erected  and  built  a  certain 
other  wall,  and  a  certain  privy,  and  a  certain  other  erection  and  building 
against  and  upon  the  wall  of  the  plaintiff,  and  kept  and  continued  the 
same  other  wall,  &c. ,  upon  and  against  the  wall  of  the  plaintiff  for  along 
space  of  time,  and  also  cast  divers  quantities  of  bricks  and  rubbish  upon 
the  plaintifiPs  close,  by  means  of  which  several  premises  the  wall  of  the 
I)laintifrhad  been  and  was  greatly  weakened  and  injured,  &c.      Plea,  not 
guilty.     At  the  trial  hc^ove.  Jltexander  C.  B.,  at  the  Summer  assizes  for 
the  county  of  Norfolk,  1826,  it  appeared  that  the  plaintiff  was  the  oc- 
cupier of  a  cottage  and  garden,  as  tenant  to  one  Mr.  Doman.     They  had 
formerly  been  the  property  of  the  plaintifl''s  father.     The  defendant  was 
the  owner  of  premises  adjoining  those  occupied  by  the  plaintiff,  and  se- 
parated therefrom  by  a  wall,  part  of  wiiich  the  defendant,  in  .luly  1825, 
had  pulled  down,  and  erected  on  the  site  of  it  another  wall  (of  a  greater 
height  than  the  old  wallj,  with  a  cottage  and  other  buildings  against  it, 
and  the  present  action  was  brought,  after  the  new  wall  had  been  rebuilt, 
to  try  the  right  of  properly  in  that    wall.     There  was  evidence  on   both 
sides  of  various  acts  of  user  of  the  wall  by  the  rcs|)cctive  owners  of  the 
jjlaintiff's  and  defendant's  premises.     The  Lord  Chief  Haron,  upon  this 
evidence,  told  the  jury  to  find  for  the  defendant,  if  they  thought  the  wall 
was  his,  or  if,  from  the  common  user  of  the  wall  by  the  respective  own- 
ers of  the  plaintilf's  and  defendant's  premises,  they  believed  tiie  plaintiff 
and  defendant  had  a  common  properly  in  it.      Tiie   verdict  returned  by 
the  foreman  of  the  jury  was,  "We  find  this  to  be  a  party  wall."     The 
Lord  Chief  Baron  said,  That  is  a  verdict  for  the  dt-fenilant.      After  the 
jury  liad  se[)nrated,  the  plaiiitilPs  counsel  ol)St;rved,  that  the  wall  might 
l)e  a  parly  wall,  and  yet  ihe  [ilaintiff  and  defendant  might  not  be  tenants 
in  common  of  if,  or  of  the  land  on  which  it  was  built;  for  if  each  of  the 
proprietors  of  the  two  estates  contributed  the  site  of  the  land  on  which  it 
was  built  in  equal  moities,  or  had  contributed  in  the  same  proportion  the 
expense  of  building  if,  each  of  them  would  remain  the  owner  of  a  moiety 
of  the  wall,  and  might  maintain  an  action  against  the  (jther  for  any  inju- 
ry done  to  that  moiety.     S/orks  Serjt.,  in  Michaelmas  term,  l.S2n,  ob- 
tained a  rule  nisi  for  a  new  trial,  upon  the  ground,    first,  that  the  atten- 
tion of  the  jury  had  not  been  drawn  to  that  distinction,  and  that  it  niight, 
therefore,  be  true  that  the   wall  was  a  party  wall,  and  yet  ilii'<  ;u  iioi\ 


212  CuDiTT  /,'.  Pom  Kit.  E.  T.  1828. 

n'ouKl  be  nuunlainablc.  Secondly,  assuininif  lliat  the  verdict  establisherl 
that  tliey  were  tenants  in  common  of  tlie  wall,  and  of  the  land  on  which 
it  was  built,  still  the  action  was  maintainable,  because  there  had  been  a 
destruction  of  the  subject-matter  of  the  tenancy  in  common  by  one  of 
the  two  co-tenants. 

Robinson  and  IVallinger  now  sliewcd  cause,  citing  Mails  v.  Hiuu- 
kins,  5  Taunt,  30;  JViltshirc  v.  Sidjord  (a). 

Storks  Serjt.  and  F.  Kelly,  contra,  referred  to  Malts  v.  HawkinSy  5 
Taunt.  20;  Co.  Litt.  200  a.;  Lilt.  s.  322. 

]3avley  J.  I  am  of  opinion  that  the  rule  for  a  new  trial  ought  to  be 
discharged.  This  was  an  action  for  pulling  down  the  plaintilPs  wall. 
If  the  wall  was  the  exclusive  property  of  the  plaintiff,  then  the  act  done 
by  the  defendant  was  a  sufficient  ground  for  the  action.  If  it  was  entire- 
ly the  property  of  the  defendant,  then  he  was  justified  in  doing  what  he 
did.  There  was  a  third  view  of  the  case,  and  that  was  the  view  taken 
of  it  by  the  Lord  Chief  Baron  at  the  trial,  viz.  that  it  might  be  the  com- 
mon property  of  the  plaintiff  and  defendant.  The  question  left  to  the 
jury  was,  whether  from  the  common  use  of  the  wall  they  would  not  in- 
fer that  it  was  common  property?  Now  there  was  certainly  very  strong 
evidence  of  common  use,  and  the  nature  of  the  right  may  be  collected 
from  the  manner  in  which  a  thing  has  been  used.  The  jury  found  that 
it  was  a  party  wall;  they  did  not  in  terms  find  that  it  was  common  pro- 
perty; but  on  having  the  question  whether  it  was  common  property  put 
to  them,  they  found  it  was  a  party  wall.  The  Lord  Chief  Baron  observ- 
ed, this  was  a  verdict  for  the  defendant.  Until  the  jury  had  separated, 
no  observation  was  made  upon  the  subject  of  the  direction  of  the  Judge, 
or  upon  the  answer  of  the  jury  on  that  point.  And  I  think  it  is  too  late, 
on  a  motion  for  a  new  trial,  to  suggest  that  the  case  might  have  been 
differently  presented  to  the  consideration  of  the  jury;  and  that  if  that 

(a)  WILTSHIRE  v.  SIDFORD.     Michaelmas,  8  G.  4. 

This  was  an  action  of  trespass.  The  cause  was  tried  before  Burrough  J.  at 
the  Spring  assizes  for  the  county  of  Wilts,  1827.  The  plaintiff  was  the  owner  of 
a  house  at  Wilton,  and  the  defendant  the  owner  of  an  adjoining  house,  which  he 
pulled  down  and  rebuilt,  and  he  built  upon  and  against  a  wall  dividing  the  former 
premises,  and  which  the  plaintiff  claimed  as  being  his  sole  property.  There  was 
contradictory  evidence  as  to  the  former  state  of  the  plaintiff's  premises,  and  con- 
flicting opinions  of  surveyors  from  the  existing  state  of  the  defendant's  premises, 
as  to  there  having  been  two  existing  walls  or  only  one,  and  as  to  the  wall  having 
been  originally  the  exterior  wall  of  the  plaintifFs  premises  before  the  defendant's 
premises  had  been  built.  The  learned  judge  told  the  jury,  some  of  whom  had 
had  a  view,  that  if  they  were  satisfied  that  there  had  been  originally  but  one  wall, 
and  that  it  had  been  jointly  used  by  the  owners  of  both  the  premises  for  nearly  a 
century,  the  date  of  the  defendant's  building,  he  was  of  opinion,  that  the  action 
was  not  maintainable,  and  he  left  it  to  the  jury  to  say,  whether  it  was  a  party  wall 
or  not.  The  jury  said  they  considered  it  to  be  a  party  wall,  and  found  a  verdict 
for  the  defendant.  A  rule  wzs?  for  anew  trial  was  obtained,  princi]jally  up'^n  the 
ground,  that  the  verdict  was  against  evidence.  Upon  the  reading  of  the  report, 
the  Court  called  upon  the  counsel  for  the  plaintiff  to  support  the  rule.  I'hey  re- 
lied on  Malts  v.  Ilawkhis,  5  Taunt.  20,  to  shew,  that  it  did  not  necessarily  follow 
from  the  fact  of  the  wall  being  a  party  wall,  that  the  plaintiff  and  defendant  were 
tenants  in  common. 

The  Court  distinguished  this  case  from  ATatts  v.  Hawkins,  where  the  quantity 
of  land  which  each  party  contributed  was  known;  and  said,  where  that  was  not 
known,  the  reasonable  presumption,  from  the  common  use  of  the  wall,  was  prima 
facie,  that  the  wall,  and  the  land  on  which  it  was  built,  were  the  undivided  pro- 
perty of  boiJi.     Thf  y  therefore  thought  the  verdict  light,  and  discharged  the  rule, 

Rule  discharged. 


8  BarNEVVALL  &  CuESSVVELL,  257.  213 

had  been  done,  the  verdict  miglit  have  been  different.  The  probability 
is  against  the  existence  of  that  state  of  things  which  would  have  justified 
a  verdict  for  the  plaintiff,  even  on  that  view  of  the  case,  which  was  not 
presented  to  the  consideration  of  the  jury.  Where  a  wall  is  common 
property,  it  may  happen  cither  that  a  moiety  of  the  land  on  which  it  is 
built  may  be  one  man's,  and  the  other  moiety  another's,  or  the  land  may 
belon"-  to  the  two  persons  in  undivided  moieties.  It  does  not  appear 
whether  at  the  time  when  this  wall  was  built  the  land  belonged  wholly 
to  one  individual.  It  might  at  that  time  have  belonged  entirely  to  one, 
and  then  he  might  have  sold  off  a  part;  or  he  might  have  sold  an  undivided 
moiety  of  the  w-all  with  the  land  on  one  side,  and  an  undivided  moiety  of 
the  wall  with  the  land  on  the  other  side.  If  the  land  on  which  the  wall  was 
built  belonged  on  one  side  tooiie  party, and  on  the  other  to  the  other  party, 
and  they  between  them  agreed  to  build  the  wall,  it  would  have  been  prudent 
at  least  to  make  this  bargain,  that  so  long  as  there  was  to  be  a  wall  continu- 
ing on  this  property,  the  land  on  which  it  was  built,  and  the  wall  which 
stood  upon  that  land,  should  betaken  and  considered  to  be  the  common  pro- 
perty of  the  two,  and  that  the  owners  of  tiie  estates  on  each  side,  should 
be  tenants  in  common  of  the  undivided  moiety  of  that  land  and  of  that 
wall;  with  the  power  of  adopting  such  remedies  for  partition  as  tenants 
in  common  may  adopt.  On  the  other  hand,  if  the  wall  stood  partly  on 
one  man's  land,  and  partly  on  another's,  either  party  would  have  a  right 
to  pare  away  the  w^all  on  his  side,  so  as  to  weaken  the  wall  on  the  other, 
and  to  produce  a  destruction  of  that  which  ought  to  be  the  common  pro- 
perty of  the  two.  It  seems  to  me,  the  probability  of  the  case  is,  that 
this  was  not  a  party  wall  according  to  the  principle  which  was  acted  upon 
in  the  case  of  Matts  v.  Haivkins,  5  Taunt.  20,  but  that  it  was  a  wall 
built  on  the  common  property  of  the  two,  and  that  the  wall  was  the  com- 
mon property  of  both.  Mails  v.  Haivkins  naturally  led  to  a  different 
conclusion;  for  under  the  party-wall  act,  each  is  to  contribute  the  land 
for  that  which  is  to  be  built  on  the  common  soil  of  the  two.  If  the  land 
is  to  be  contributed  by  the  parties  in  equal  proportions,  it  may  be  a  pro- 
ble  con.sequencc  (I  do  not  say  whether  it  is  or  not)  that  the  wall  belongs 
one  half  to  one  and  the  other  half  to  the  other;  but  that,  as  it  seems  to  me, 
in  the  country  where  the  party-wall  act  docs  not  apply,  is  such  an  im- 
probable state  of  things,  that  we  ought  not  to  scnil  it  down  again  to  a 
new  trial,  on  the  ground  that  that  view  of  the  case  was  not  jircsemed  to 
the  consideration  of  the  jury,  when  at  tlic  trial  it  was  not  desired  by 
the  counsel  that  it  should  be  so  presented  to  them. 

Then,  the  next  point  is,  whether,  assuming  that  the  land  on  which 
this  wall  was  built,  and  that  the  wall  itself,  was  the  common  property 
of  the  two,  the  act  done  by  the  defendant  entitled  the  plaintiff  to  main- 
tain trespass.  It  has  been  contended  that  trespass  is  maintainable,  on 
the  ground  that  there  was  a  destruction  of  the  thing,  and  tlial  if  one 
tenant  in  coinmon  destroy  that  which  is  the  subject  of  the  tenancy  in 
common,  that  is  an  actual  ouster  and  expulsion  by  ihc  one  of  the  other, 
and  that  the  party  so  expelled  may  maintain  an  action  of  trespass  for 
what  has  been  done  in  tliat  respect.  Perhaps  if  one  had  rntircly  de- 
stroyed the  wall,  that  might  have  been  a  foundation  for  an  action  of  trcs- 
pass.  But  I  take  it,  that  in  the  case  of  a  wall,  a  temporary  removal, 
with  a  view  to  improve  j)art  of  the  property  on  one  side  at  least,  and, 
pfrhaj)S,  on  both,  is  not  such  a  destruction  as  will  justify  an  action  of 
trespass.     There  is  no  authority  to  shew  that  one  tenant  in  common  can 


214  Cub  ITT  v.  Poiiter.  E.  T.  1828. 

maintain  an  action  against  tlie  other  lor  a  temporary  removal  of  the  sub- 
ject-matter of  the  tenancy  in  common,  the  part}'^  removing;  it  having  at 
the  same  time  an  intention  of  making  a  prompt  restitution.  It  was  not 
a  destruction  :  the  ohject  of  the  party  was  not  that  there  should  be  no 
wall  there,  but  tliat  there  should  be  a  wall  there  again  as  expeditiously 
as  a  wall  could  be  made.  But  then  it  is  said  the  wall  here  is  much  high- 
er than  the  wall  was  before.  What  is  the  consequence  of  that?  One 
tenant  in  common  has,  upon  that  which  is  the  subject-matter  of  the  tenan- 
cy in  common,  laid  bricks  and  heightened  the  wall.  If  that  be  done 
further  than  it  ought  to  have  been  done,  what  is  the  remedy  of  the  other 
party  ?  He  may  remove  it.  That  is  the  only  remedy  he  can  have.  If 
there  be  land  belonging  to  two  as  tenants  in  common,  and  one  builds  a 
wall  on  that  land,  the  other  cannot  bring  trespass,  because  he  is  exclud- 
ed from  the  surface  of  that  ground  for  a  certain  period  of  time,  viz.  for 
so  long  a  period  as  that  wall  stands.  This  case  falls  within  the  principle 
acted  upon  in  IViltshire  v.  Sidford,  Ante,  212.  The  view  in  which 
it  was  presented  to  the  jury  by  the  Lord  Chief  Baron  was  the  right  view 
of  it.  There  was  evidence  of  a  common  user  by  both  parties,  which  jus- 
tified the  presumption  either  that  the  wall  was  originally  built,  on  land 
belonging  in  undivided  moieties  to  the  owners  of  the  respective  pre- 
mises, and  at  their  joint  expense  ;  or  that  it  had  been  agreed  between 
them  that  the  wall  and  the  land  on  which  it  stood  should  be  considered 
the  property  of  both  as  tenants  in  common,  so  as  to  insure  to  each  a  con- 
tinuance of  the  use  of  the  wall.  For  these  reasons  I  am  of  opinion  that 
this  rule  ought  to  be  discharged. 

HoLROYD  J.  I  am  of  opinion  that  this  rule  ought  to  be  discharged.  It  is 
incumbent  on  the  plaintiffto  establish  his  right  of  action.  The  declara- 
tion in  this  case  was  for  pulling  down  the  old  wall  and  building  the  new 
one.  The  presumption  arising  from  the  acts  of  enjoyment  is,  that  the 
wall  was  the  property  of  the  plaintifl'and  defendant  as  tenants  in  com- 
mon; for  the  law  will  presume  that  what  was  done  without  opposition 
for  a  considerable  time  was  done  rightfully,  and  that  these  acts  of  enjoy- 
ment were  lawful.  That  being  the  case,  there  was  abundant  evidence 
upon  the  trial  to  raise  a  question  to  go  to  the  jury,  whether  the  wall  was 
or  wcs  not  the  common  wall  of  both.  There  having  been  a  joint  use  of 
the  wall  by  both,  each  must  have  had  the  right  originally,  or  have  ac- 
quired the  right  in  the  course  of  time  by  legal  means.  The  jury  have 
found  in  effect  that  it  was  their  common  property.  The  question  then 
arises,  whether  one  tenant  in  common  can  maintain  an  action  of  trespass 
against  another  for  such  acts  as  were  done  in  this  case  by  pulling  down 
the  old  wall  and  building  the  new  one  on  its  site.  Taking  it  to  be  the 
law,  that  where  there  is  a  complete  destruction  by  one  tenant  in  com- 
mon of  that  which  he  has  in  common  with  others,  so  that  that  other  is 
wholly  deprived  of  the  use  of  it,  an  action  of  trespass  will  lie,  I  think 
the  act  done  by  the  defendant  in  this  case  cannot  be  considered  as  a  de- 
struction of  the  wall;  the  removal  of  the  old  wall  having  been  effected 
merely  for  the  purpose  of  rebuilding  another  on  its  site  as  speedily  as 
possible. 

LiTTLEDALF.  J.  I  am  entirely  of  the  same  opinion.  The  plaintiff" 
seems  to  have  claimed  the  wall  as  his  own  exclusive  property,  and  so 
did  the  defendant.  There  was  abundant  evidence  to  raise  the  question 
for  the  consideration  of  the  jury.  Whether  the  plaintiff"  and  defendant 
were  tenants  in  common  ?     It  is  suggested,  that  although   the  learned 


8  Barnewall  &  CiJESSWELL,  257.  215 

Judge  left  it  to  the  jury  to  fintl  vvhclhcr  tlie  wall  was  the  property  of  the 
plaintiflfor  of  the  defendant,  and  also  whether  it  was  tlie  common  pro- 
perty of  both  as  tenants  in  common,  yet  that  the  foreman  of  the  jury 
when  he  returned  the  verdict  did  not  in  express  terms  answer  the  ques- 
tion put  to  them  by  the  learned  Judge,  but  said  that  the  jury  found  it  to 
be  a  party-wall;  and  that  that  finding  is  consistent  witji  thefact  of  the 
wall,  and  the  soil  on  which  it  was  built,  having  originally  belonged  to 
the  plaintiff  and  defendant,  or  those  under  whom  they  claimed,  in  equal 
moieties.  It  appears  that  when  that  verdict  was  returned,  the  Lord 
Chief  Baron  observed  that  it  was  a  verdict  for  the  defendant.  The  plain- 
tiff's counsel  did  not  then  suggest  to  the  Lord  Chief  Baron  the  propriety 
of  leaving  to  the  jury  the  question  in  any  other  form  than  that  in  which  it 
was  left  to  them,  or  intimate  any  doubt  as  to  the  sufficiency  of  the  evidence 
to  warrant  the  jury  in  coming  to  the  conclusion  to  which  they  did  come. 
That  being  so,  a  new  trial  cannot  now  be  granted  on  that  ground.  But 
even  assuming  the  parties  to  have  been  tenants  in  common  of  this  wall, 
then  it  is  said  that  trespass  will  lie  in  this  case  by  one  tenant  in  com- 
mon against  the  other,  because  there  was  in  this  case  a  destruction  of  the 
subject-matter  of  the  tenancy  in  common.  In  Com,  Dig.  Estates,  (K.) 
S,  there  are  various  cases  as  to  the  remedy  which  one  tenant  in  common 
has  against  another.  It  appears  that  with  regard  to  actions  in  respect  to 
matters  not  chattels,  in  some  cases  an  ejectment  will  lie,  if  one  actually 
oust  his  companion  of  the  possession,  and  trespass  will  lie  where  there 
has  been  a -complete  and  total  destruction  of  the  subject-matter  of  the 
tenancy  in  common  ;  as  if  one  tenant  in  common  destroys  the  whole 
flight  of  a  dove-cote,  or  all  the  deer  in  their  park.  In  other  cases  where 
there  has  not  been  a  total  destruction  of  the  subject-matter  of  the 
tenancy  in  common,  but  only  a  partial  injury  to  it,  waste  or  an  action 
on  the  case  will  lie  by  one  tenant  in  common  against  another;  as  if  one 
tenant  in  common  of  a  wood  or  piscary  does  waste  against  the  will  of 
the  other,  he  shall  have  waste;  or  if  one  corrupts  the  water,  the  other 
shall  have  an  action  on  tlie  case.  There  are  other  cases  where  the  only 
remedy  is  to  retake  the  property.  As  if  one  take  a  chattel  real  or  per- 
sonal entire,  the  other  may  retake  it  when  he  has  an  opportunity  ;  but 
he  has  no  remedy  by  action.  If,  again,  there  be  two  tenants  in  common 
of  a  house  or  mill,  and  it  fall  into  decay,  the  one  is  willing  to  repair,  and 
the  other  will  not,  he  that  is  willing  shall  have  a  writ  do  reparatione 
facienda.  It  has  been  said  that  trespass  will  lie  in  this  case  by  one  tenant 
in  common  against  the  other,  because  there  has  been  an  expulsion 
amounting  to  an  actual  ouster.  Now,  if  there  has  been  an  actual  ouster 
by  one  tenant  in  common,  ejectment  will  lie  at  tbe  suit  of  the  other.  But 
I  am  not  aware  that  trespass  will  lie,  for  in  trespass  the  breaking  anil 
entering  is  the  gist  of  tbe  action;  expulsion  or  ouster  is  a  mrro.  aggrava- 
tion of  tbe  trespass.  If  the  original  entry  therefore  be  lawful,  trespass 
will  not  lie.  In  Taylor  v.  Cole.,  3  T.  1{.  2.'»2,  the  first  count  was  for 
breaking  and  entering  the  plaintiff's  house,  and  expelling  iiim.  As  to 
the  breaking  and  enterine,  the  defendant  justified  as  sheriff  of  Middle- 
sex under  a  fieri  facias.  Upon  general  demurrer  it  was  held  that  the  plea, 
which  only  justified  the  breaking  and  entering  by  .sbnwing  a  good  cause 
for  it,  was  a  full  answer,  because  the  breaking  and  entering  were  the 
gist  of  the  action,  and  thf  rxpulsinn  was  only  nialfrr  of  aggravation;  and 
that  if  the  plaintifl  harl  wished  to  tako  advantage  nf  the  expulsion,  which 
was  merely  matter  of  aggravation,   he  ouglit  to  have  shewn  the  special 


■;:16  CuniTT  V.  PoKTF.u.   K.  T.  1828. 

imltrr  in  a  now  assignment,  in  oivlcr  to  make  tlio  party  a  trespasser  ah 
initio.  TluMi,  il"  the  expulsion  l)e  mere  ao;ii;ravation,  trespass  will  not 
lie  for  it,  heraiise  the  ori<:i;inal  entry  is  lawful,  Tiie  original  entry  beinu; 
the  gist  of  the  action  in  trespass,  and  the  expulsion  mere  aggravation,  I 
doubt  much  whelJier  trespass  can  be  maintained  even  for  an  expulsion. 
Here  the  defendant  pulled  down  one  wall,  and  built  another  on  its  site. 
If  two  persons  be  tenants  in  common  of  land  on  which  there  is  a  wall, 
nnd  one  refuses  to  repair,  and  the  other  pulls  down  the  wall,  and  sells 
the  materials,  and  builds  a  better  wall,  it  may  be  said  tliat  there  has  been 
:\  total  destruction  of  the  original  wall,  more  especially  if  he  sold  the  ma- 
terials. Still  if  he  did  that  lor  the  purpose  of  getting  other  materials  to 
make  the  new  wall  better  than  the  old  one  was,  and  he  builds  the  new 
one,  though  there  was  a  destruction  of  that  which  was  originally  the 
subject-matter  of  the  tenancy  in  common,  an  action  of  trespass  will  not 
he  maintainable.  Such  an  act  is  more  properly  the  subject-matter  of  an 
action  upon  tlie  case,  because  it  is  in  the  nature  of  a  partial  injury,  and 
not  of  a  total  destruction  of  the  subject-matter  of  the  tenancy  in  common. 
If  tenant  for  life  or  tenant  for  years  pull  down  any  wall  or  other  build- 
ing, it  is  the  subject  of  an  action  of  waste  at  the  suit  of  the  reversioner. 
It  is  expressly  laid  down  in  Com.  Dig.  Estates,  (K.  8.)  if  one  tenant  in 
common  of  wood,  turbary,  &c.  does  waste  against  the  will  of  another,  he 
shall  have  waste  concerning  it.  Here  the  pulling  down  of  the  old  wall 
without  the  consent  of  the  plaintiff  might  be  waste.  An  action  of  waste 
is  tlie  proper  remedy  for  a  reversioner  or  landlord  against  ^  tenant  who 
pulls  down  a  building;  and  such  an  action  may  be  maintained  by  one 
tenant  in  common  against  another,  who  has  improperly  pulled  down  a 
wall,  the  common  property  of  the  two.  Upon  the  whole,  I  am  of 
opinion  that  trespass  is  not  maintainable.  The  rule  for  a  new  trial  must 
tliereforc  be  discharged. 

Rule  discharged. 


The  KING  V.  The  Inhabitants  of  LAWFORD.— p.  271. 

A  pauper,  while  lie  was  under  age,  quitted  his  parent,  and  went  to  sea,  serving 

sometimes  in  a  kinj^'s  ship,  at  other  times  in  trading  vessels,  and  remained  in 

s\ich  service,  and  so  separated  from  his  father's  family,  when  he  attained  the 

age  of  twenty-one  years:  Held,  that  he  was  then  emancipated,  and  that  his 

.    -ittlement  did  not  afterwards  shift  with  that  of  his  father. 


ATKINSON   and   Others,  Assignees  of  SLEDDON,  v.    BELL  and 

Others.— p.  277. 

A.  having  a  patent  for  certain  spinning  machinery,  received  an  order  from  B.  to 
have  some  sj/mning  frames  made  for  liim.  A.  employed  C.  to  make  the  ma- 
chines for  B.,  and  informed  the  latter  that  he  had  so  done.  After  the  machines 
had  been  completed,  A.  ordered  them  to  he  alteretl.  They  were  afterwards 
completed  according  to  this  new  order,  and  packed  up  in  boxes  for  B.,  and  C. 
informed  B.  that  they  were  ready,  but  he  refused  to  accept  them:  Held,  that 
C  covdd  not  recover  the  price  from  B.  in  an  action  for  goods  bargained  .ind 
sold,  or  for  work  and  labour,  and  materials. 


8  BauNEWALL  &  CUESSWELL,  277.  317 

Assumpsit  for  goods  sold  and  delivered,  goods  bargained  and  sold, 
work  and  labour,  and  materials  found  and  provided.  At  the  trial  be- 
fore Ilullock  B.  at  the  Summer  assizes  for  Lancaster  1S27,  it  appeared 
that  the  defendants  were  linen  and  thread  manufacturers  at  Whitehaven, 
in  Cumberland.  The  bankrupt  Sleddon  before  his  bankruptcy  was  a 
machine-maker  residing  at  Preston,  in  Lancashire.  One  Kay,  of  Pres- 
ton, obtained  a  patent  for  a  new  mode  of  spinning  flax,  and  the  defend- 
ants being  desirous  of  tr3'ing  the  effect  of  it,  on  the  12th  November 
1525  by  letter  ordered  him  to  procure  to  be  made  for  them  as  soon  as 
possible  a  preparing  frame  and  two  spinning  frames,  in  the  manner  he 
most  approved  of.  In  January  1826  Kay  ordered  two  spinning  frames 
and  a  roving  frame  to  be  made  by  Sleddon  for  the  delendants,  and  in- 
formed them  that  he  had  so  done.  These  machines  were  formed  on 
Kay's  first  plan,  and  completed  at  the  end  of  March,  and  after  they 
had  been  so  completed  they  lay  in  Sleddon's  premises  a  month,  while 
two  other  machines  of  these  defendants,  intended  to  be  used  in  the 
same  mills,  were  altered  by  Sleddon,  under  Kay's  superintendence; 
and  when  those  had  been  completed  to  his  mind,  he  ordered  the  ma- 
chines in  question  to  be  altered  in  the  same  manner.  They  were  altered 
accordingly,  packed  in  boxes  by  Kay's  direction,  and  remained  on 
Sleddon's  premises.  On  the  23d  of  June  1S2G  Sleddon  wrote  to  the 
defendants,  and  informed  them  that  the  two  frames  had  been  ready  for 
the  last  three  weeks,  and  begged  to  know  by  what  conveyance  they 
were  to  be  sent.  On  the  8th  of  August  a  commission  of  bankrupt  issued 
against  Sleddon,  under  which  he  was  duly  declared  a  bankrupt.  The 
assignees  afterwards  required  the  defendants  to  take  the  frames,  but 
they  refused  to  do  so.  It  was  objected  on  the  part  of  the  defendants, 
that  the  action  was  not  maintainable  for  goods  bargained  and  sold,  be- 
cause the  property  in  the  frames  had  never  vested  in  the  defendants. 
The  learned  Judge  was  of  opinion  that  the  action  was  not  maintainable, 
and  he  directed  a  nonsuit  to  bs  entered,  with  liberty  to  the  plaintifls  to 
move  to  enter  a  verdict  for  the  price  of  the  machines.  A  rule  nisi  hav- 
ing been  obtained  for  that  purpose, 

lirougham  and  Parke  now  shewed  cans?,  and  referred  to  Muckloio 
v.  Maiif^les,  1  Taunt.  318;  Simmons  v.  Stvijf,  5  13.  &  C.  S57;  Towers 
V.  Osborne,  1  Str.  500;   Garbul  v.  fValson,  5  B.  &  A.  613. 

Cross  Scrjt.  and  Tomllnson  contra,  cited  Jl'oods  v.  Russell,  5  B. 
&  A.  912;  Ro/idc  v.  Thnuiilrs,  G  M.  &  C.  3SS:  Towers  v.  Osborne,  1 
Str.  506;  Dunmow  v.  Taylor,  Peakc,  N.  P.  11. 

Bayley  J.  I  think  the  rule  for  entering  a  verdict  for  the  plaintiff 
ought  to  be  discharged.  If  the  declaration  had  contained  a  count  for  not 
accepting  the  mnchincs,  the  plaintilfs  might  have  been  entitled  to  reco- 
ver; and  I  think  now  that,  upon  payment  of  costs,  they  should  be  allow- 
ed to  set  aside  the  nonsuil,  and  add  other  counts  to  the  declaration,  and 
have  a  new  trial.  Hut  I  caiuiot  siy  that  the  property  passed  to  the  de- 
fendants, so  as  to  enaide  the  plaintiffs  to  recover  on  the  counts  for  goods 
bargained  and  sold,  or  for  work  and  labour.  It  is  said  that  there  was 
an  appropriation  of  these  specific  machines  by  the  maker,  and  that  the 
property  thereby  vested  in  the  defendants.  I  think  it  did  not  pass. 
Where  goods  are  ordered  to  be  made,  while  they  are  in  progress  the 
materials  belong  to  the  maker.  The  property  docs  not  vest  in  the  party 
who  gives  the  order  until  the  thing  ordered  isrompletod.  And  although 
while  the  goods  are  in  progress  the  maker  may  intend  thrm  for  the  per- 

VOL.   XV.  2b 


218  Atkinson  v.  Hell.  E.  T.  1828. 

5on  ordering,  still  lie  may  afterwards  deliver  them  to  another,  and  there- 
by vest  the  property  in  that  other.  Although  the  maker  may  thereby 
render  himself  liable  to  an  action  for  so  doing,  still  a  good  title  is  given 
to  the  party  to  whom  they  are  delivered.  It  is  true  that  Kay  saw  these 
things  while  tlic}'  were  in  progress,  and  knew  that  the  bankrupt  intend- 
ed them  for  the  defendants:  yet  thc}'^  might  afterwards  have  been  deli- 
vered to  a  third  person.  This  case  is  not  affected  by  the  argument  that 
tliese  are  patent  articles,  because  they  might  have  been  delivered  to  a 
third  person  with  Kay's  assent.  The  case  of  fVoods  v.  Jiussell,  5  B. 
&  A.  942,  is  distinguishable.  The  foundation  of  that  decision  was,  that 
as  by  the  contract  given  portions  of  the  price  were  to  be  paid  according  to 
the  progress  of  the  work,  by  the  payment  of  those  portions  of  the  price 
the  ship  vvas  irrevocably  appropriated  to  the  person  paying  the  money. 
That  was  a  purchase  of  the  specific  articles  of  which  the  ship  was  made. 
Besides,  there  the  ship-builder  had  signed  the  certificate  to  enable  tb.e 
purchaser  to  have  the  ship  registered  in  his  name;  the  legal  effect  of 
which  was  held  to  be  to  vest  the  general  property  in  the  purchaser.  If 
in  this  case  an  execution  had  issued  against  Sleddon,  the  sheriff  might 
have  seized  the  machines.  They  were  Sleddon's  goods,  althoMgh  they 
were  intended  for  the  defendants,  and  he  had  written  to  tell  them  so. 
If  they  had  expressed  their  assent,  then  this  case  would  have  been  with- 
in Rohde  V.  Thwaites,  6  B.  &  C.  388,  and  there  would  have  been  a 
complete  appropriation  vesting  the  property  in  the  defendants.  But 
there  was  not  any  such  assent  to  the  appropriation  made  by  the  bank- 
rupt, and  therefore  no  action  for  goods  bargained  and  sold  was  main- 
tainable. Then  as  to  the  counts  for  work  and  labour,  if  you  employ  a 
man  to  build  a  house  on  your  land,  or  to  make  a  chattel  with  your  mate- 
rials, the  party  who  does  the  work  has  no  power  to  appropriate  the  pro- 
duce of  his  labour  and  your  materials  to  any  other  person.  Having  be- 
stowed his  labour  at  your  request  on  your  materials,  he  may  maintain  an 
action  against  you  for  work  and  labour.  But  if  you  employ  another  to 
work  up  his  own  materials  in  m.aking  a  chattel,  then  he  may  apj)ropriate 
the  produce  of  that  labour  and  materials  to  any  other  person.  No  right 
to  maintain  any  action  vests  in  him  during  the  progress  of  the  work; 
but  when  the  chattel  has  assumed  the  character  bargained  for,  and  the 
employer  accepted  it,  the  party  employed  may  maintain  an  action  for 
goods  sold  and  delivered;  or  if  the  employer  refuses  to  accept,  a  special 
action  on  the  case  for  such  refusal.  But  he  cannot  maintain  an  action 
for  work  and  labour,  because  his  labour  was  bestowed  on  his  own  mate- 
rials, and  for  himself,  and  not  for  the  person  who  employed  him.  I 
think,  that  in  this  case  the  plaintiff  cannot  recover  on  the  count  for  work 
and  labour. 

HoLROYD  J.  I  think  that  on  the  facts  given  in  evidence  a  verdict 
might  have  been  sustained  on  a  count  for  not  accepting  the  machines. 
I  h:ive  entertained  great  doubt  during  the  argument,  whether  a  verdict 
might  not  be  sustained  on  the  count  for  work  and  labour  and  materials 
found.  I  think  it  will  not  lie  for  goods  bargained  and  sold,  because 
there  was  no  specific  appropriation  of  the  machines  assented  to  by  the 
purchaser,  and  the  property  in  the  goods,  therefore,  remained  in  the 
maker.  Then  as  to  work  and  labour,  the  work  was  done,  and  the  la- 
bour bestowed  on  the  materials  of  the  maker  in  manufacturing  an  arti- 
cle which  never  became  the  property  of  the  defendants.  I  am  of  opi- 
nion, therefore,  that  the  work  was  done  for  the  bankrupt,  and  not  for 
the  defendants. 


8  Barnewall  &  Cresswell,  277.  219 

LiTTLEDALE  J.  I  am  of  the  same  opinion.  Goods  bargained  and 
sold  will  not  lie  unless  there  be  a  sale.  There  could  not  be  any  sale  in 
this  case,  unless  there  was  an  assent  by  the  defendants  to  take  the  arti- 
cles. Here  there  was  no  assent.  The  property  must  be  changed,  to 
make  the  action  maintainable.  If  the  property  had  been  changed,  the 
maker  could  not  have  delivered  these  machines  to  any  one  but  the  de- 
fendants. I  think,  however,  he  might  have  delivered  them  to  another, 
notwithstanding  any  thing  that  passed,  and  that  the  defendants  could 
not  have  maintained  trover  against  the  party  to  whom  they  were  deli- 
vered. In  the  case  of  an  execution  or  a  bankruptcy,  these  machines 
must  have  been  treated  as  the  goods  of  the  maker.  As  to  the  count  for 
work  and  labour  and  materials,  the  labour  was  bestowed,  and  the  mate- 
rials were  found,  for  the  purpose  of  ultimately  effecting  a  sale,  and  if 
that  purpose  was  never  completed,  the  contract  was  not  executed,  and 
then  work  and  labour  will  not  lie.  The  work  and  labour  and  materials 
were  for  the  benefit  of  the  machine-maker,  and  not  for  the  defendants. 

Rule  absolute,  on  payment  of  costs. 


JOSEPH  PRATT,  Administrator  of  ANN  PRATT,  v.  SWAINE.— 

p.  2S5. 

To  a  declaration  in  trover  by  an  administrator,  alleging  the  grant  of  letters  of 
administration  to  the  plaintiff,  and  that  the  defendant  knowing  the  goods  to 
have  been  the  property  of  the  intestate  in  his  life-time,  and  of  the  plaintiff  as 
administrator  since  his  death,  afterwards,  and  after  the  death  of  the  intestate, 
to  wit,  on,  8cc.,  converted  the  same  goods,  a  plea  of  not  guilty  of  the  premises 
within  six  years  is  bad  upon  special  demurrer. 


BRYAN  v.  WHISTLER,  Clerk.— p.  288. 

Where  a  rector  granted  to  A.  H.  by  parol,  leave  to  make  a  vault  in  the  parisli 
church,  and  to  bury  a  certain  corpse  there,  and  that  lie  should  have  tlie  exclu- 
.sivc  use  of  the  vault;  and  afterwards,  without  the  leave  of  A.  ]\.,  opened  the 
vault,  and  buried  another  person  tlierc:  Held,  tliat  no  action  coukl  l)e  maintain- 
ed against  him  for  so  doing;  for  that  if  the  rector  had  power  to  grant  the  exclu- 
sive use  of  a  vault,  lie  could  not  do  it  by  parol. 

Semblc,  That  a  rector  cannot  grant  a  vault  in  the  church,  but  only  leave  to  bury 
there  in  each  particular  instance. 

Case  for  disturbing  a  vault.  The  first  count  of  the  declaration  stated 
tliat  the  defendant  was  rector  of  the  pnrisli  clnirch  of  St.  Clement, 
Hastings,  and  pl.iintifl"  being  desirous  of  burying  one  M.  A.  W.  in  a 
vault  in  that  churcli,  on,  &.c.  applied  lo  the  defendant,  as  such  rector, 
for  permission  to  make  a  vault  there  for  that  purpose,  and  to  put  up  a 
tablet  or  monument  near  the  vault  to  perpetuate  the  same;  and  the  de- 
fendant, as  such  rector,  in  consideration  of  20/.  to  bo  paid  to  him  for 
such  permission,  consented  and  agreed  that  the  ])laintiir  should  have 
jjcrmission  to  make  such  vault  and  to  |)ut  up  .s  ich  tMblct,  and  should 
liave  the  .sole  and  exclii.sivii  use  of  such  v.uill,  u])on  l)cing  \r.\\i\  20/.  and 
1/.  Is.  for  the  service.  Avernient,  that  the  j)laintiir  d'd  at  his  expense 
make  such  vault,  and  cause  the  body  of  M.  A.  \W .  to  be  buried  there- 
in, and  put  u[)  a  tablet,  and  pay  the  defendant  20/.  for  such  pjimission, 


220  Hkvan  v.  Whistler.  E.  T.  1828. 

ami  1/.  Kv.  lor  llio  service,  yet  the  defendant  intending  to  injure  the 
plaintill,  anil  to  deprive  him  of  the  exclusive  use  and  hehellt  of  the 
Vault,  and  riglit  of  interment  therein,  and  to  disturb  the  remains  of  the 
Slid  ]\r.  A.  W.,  afterwards,  to  wit,  on,  &.C.,  broke  into  and  damaged 
the  said  vault,  and  wrongfully,  and  without  the  leave  of  the  plaintill", 
caused  the  same  to  be  opened,  and  interred  therein  the  body  of  another 
person.  The  second  count,  after  stating  the  agreement  with  the  de- 
fendant, alleged  that  the  jilaintiff,  with  the  knowledge  and  consent  of 
the  defendant,  put  up  a  tablet  near  the  vault  with  a  certain  inscription 
thereon,  viz.  "In  a  vault  beneath  this  tablet  (appropriated  to  the  family 
of  T.  B.)  are  the  remains  of  M.  A.  W.,  &,c. ;"  and  then  concluded  as 
in  the  first  count.  Third  count  alleged  generally  that  the  plaintifl  by 
the  consent  and  agreement  of  the  defendant,  given  in  consideration  of 
20/.  to  him  paid,  had  become  and  was  entitled  to  the  exclusive  use  of 
a  vault  in  the  said  church,  and  that  the  defendant  wrongfully  defaced 
and  injured,  and  opened  it.  Plea,  not  guilty.  At  the  trial  before 
Gaselee  J.,  at  the  Sussex  Summer  assizes  1827,  it  was  proved  that  in 
the  year  1S19,  the  plaintiff  applied  to  the  defendant  for  leave  to  make 
a  vault,  as  stated  in  the  declaration;  the  defendant  by  parol  granted 
leave,  but  demanded  a  fee  of  20/.,  which  sum  was  paid  to  him.  The 
vault  was  made  at  the  plaintiff's  expense,  and  the  defendant  performed 
the  burial  service  over  the  body  of  M.  A.  W.,  who  was  buried  in  the 
vault,  to  the  size  of  which  the  defendant  made  no  objection  at  that  time. 
After  the  funeral  the  defendant  gave  the  following  receipt  to  the  plain- 
tiff: "  Received  ISth  September  1S19,  of  T.  B.,  Esq.  20/.  for  permis- 
sion to  make  a  vault  in  the  church  of  St.  Clement,  Hastings,  between 
the  south  wall  and  aisle  thereof,  and  to  put  up  a  tablet  or  monument  to 
perpetuate  the  same,  &c.  &c.,  and  one  guinea  for  the  service,  &c." 
Soon  after  the  funeral  the  plaintiff  put  up  a  tablet  with  the  inscription 
set  out  in  the  second  count.  This  was  frequently  seen  by  the  defend- 
ant, who  made  no  objection  to  it.  In  the  year  1825  the  defendant, 
without  the  plaintiff's  leave,  caused  the  vault  to  be  opened,  and  buried 
another  corpse  there.  Upon  these  facts  it  was  contended  that  the  plain- 
tiff had  no  such  interest  in  the  vault  as  would  enable  him  to  maintain 
the  action,  for  tliat  there  was  not  any  conveyance  or  other  instrument 
vesting  in  him  an  exclusive  right  to  the  vault,  and  the  case  of  Hewlins 
V.  Shippam,  5  B.  &  C.  221,  was  cited.  The  learned  Judge  gave  the 
defendant  leave  to  move  to  enter  a  nonsuit  on  that  ground;  and  the  jury 
having  found  a  verdict  for  the  plaintiff,  iV/r/zrya/ in  Michaelmas  term 
obtained  a  rule  nisi  for  entering  a  nonsuit,  against  which 

Gurncy,  Hodgson,  and  Chilly  shewed  cause.  They  cited  3d  Inst. 
202;  y  Ed.  4.  14.«.;  Franccs\.  Ley,  Cro.  Jac.  366;  Degge's  Parson's 
Counsellor,  176,  6th  edit. ;  Gibson's  Codex,  542;  Hewlins  v.  Shippam, 
5B.  &C.  221;  Winlerv.  Brock  well,  8  East,  308;  Taylor  v.  WaterSy 
7  Taunt.  374;  Palmer  v.  T/ie  liishop  of  Excler,  1  Sir.  576. 

F.  Pollock  contra,  cited  Hewlins  w.  Shippum,  5  B.  &  C.  221;  Tay- 
lors. Waters,  7  Taunt.  374. 

Batley  J.  I  am  extremely  sorry  that  an  individual  in  the  situation 
of  the  defendant,  having  received  a  pecuniary  compensation  for  the 
grant  of  a  privilege  intended  to  be  binding  at  all  events  during  his  own 
incumbency,  should  afterwards  keej)  the  money  and  recede  from  his 
undertaking.  But  if  the  question  of  law  be  with  him,  his  defence  to 
this  action  must  prevail,     it  seems  to  me  that  the  objection  raised  is 


8  Barnewall  &  CuESSWELL,  288.  221 

valid.  The  declaration  states  in  substance,  that  in  consideration  of  a 
certain  sum  of  money  the  defendant  agreed  that  the  plaintiff  might 
make  a  vault,  and  have  the  sole  and  exclusive  use  of  it.  If  that  were 
an  interest  in  land,  the  grant  could  not  be  binding  under  the  statute  of 
frauds,  unless  there  were  a  memorandum  in  writing  signed  by  the  party 
granting.  No  memorandum  was  in  this  instance  signed  except  the  re- 
ceipt, which  is  silent  as  to  the  exclusive  use  of  the  vault,  and  the  action 
is  brought  for  a  violation  of  the  plaintiff's  right  to  the  exclusive  use.  If 
it  be  not  an  interest  in  land  it  is  an  easement,  or  the  grant  of  an  incor- 
poreal hereditament;  which  could  only  be  effectually  granted  by  deed, 
and  no  such  instrument  was  executed.  But  even  had  a  deed  been  exe- 
cuted, I  think  the  defendant  had  not  power  to  grant  any  privilege,  ex- 
cept for  the  particular  burial  then  about  to  take  place.  The  rector  has 
the  freehold  of  the  church  for  public  purposes,  not  for  his  own  emolu- 
ment; to  supply  places  for  burial  from  time  to  time,  as  the  necessities 
of  his  parish  require,  and  not  to  grant  away  vaults,  which,  as  it  seems 
to  me,  cannot  be  done  unless  a  faculty  has  been  obtained.  Even  by 
means  of  a  faculty,  a  pew  can  only  be  granted  to  the  inhabitants  of  a 
parish,  and  it  is  for  the  most  part  limited  to  a  house,  a  removal  from 
which  destroys  the  right  to  the  pew.  Now,  I  cannot  find  any  good 
reason  why  the  same  rules  should  not  be  applicable  to  a  vault.  In  Com. 
Dig.  Cemetry  (B),  it  is  said,  *'  A  man  may  prescribe  that  he  is  tenant 
of  an  ancient  messuage  and  ought  to  have  separate  burial  in  such  a  vault 
within  the  church."  This  is  like  the  prescription  for  a  pew  in  Rogers 
V.  Brooks,  1  T.  R.  431.  n.  In  the  latter  case  the  prescription  implies 
a  faculty.  Why  then  should  it  not  in  the  former?  The  objection  to 
the  form  of  action  does  not  appear  well  founded,  for  the  right  claimed 
is  not  to  the  soil  but  to  an  easement;  but  for  the  reasons  above  given,  I 
am  of  opinion  that  a  nonsuit  must  be  entered. 

HoLROYD  J.  It  seems  to  me,  that  if  the  action  were  maintainable, 
case  would  be  the  proper  form,  the  claim  being  to  an  easement.  But 
whether  it  be  an  easement  or  an  interest  in  land,  the  action  cannot  be 
supported.  The  declaration  states,  that  an  application  was  made  by  the 
plaintiff  to  the  defendant,  for  permission  to  make  a  vault  and  have  the 
exclusive  use  of  it;  and  that  the  defendant  agreed  that  he  might  do  so. 
If  that  could  be  considered  as  giving  the  exclusive  use  of  the  vault  for 
all  purposes,  trespass  would  lie;  but  it  must  be  taken  as  giving  a  spe- 
cial use  of  the  vault,  viz,  for  the  purposes  of  burial;  case,  therefore, 
was  the  proper  remedy,  as  it  is  for  the  disturljancc  of  a  pew,  the  right 
to  whicli  is  granted  for  the  sj)ccial  purpose  of  attending  ilivine  service. 
I'ut  wlietlier  the  grant  were  for  a  special  purpose  or  general  for  all  pur- 
jioses,  the  right  could  not  |)ass  without  deed  or  writing.  Here,  there- 
fore, the  plaintiff  proved  no  legal  right,  and  consequently  cannot  sustain 
his  action. 

LiTTLKPALK  J.  I  oin  of  Opinion  ihat  this  action  is  not  mninlainablo. 
The  right  claimed  does  not  appear  (o  i)e  an  interest  in  land,  so  as  to  bo 
affected  by  the  statute  of  framls.  The  right  said  to  have  been  granted 
was  merely  a  privilege  to  make  a  vault  and  bury  there.  The  right  is 
claimed  as  an  easement,  giving  a  sole  and  exclusive  privilege  of  burial. 
Now,  according  to  Com.  Dig.  Cemetry  (B),  that  must  be  prescribed 
for  as  appurtenant  to  an  ancient  messuage.  Prescription  presumes  a 
grant,  and  I  have  little  difliculty  in  saying  that  the  rector  had  no  power 
to  grant  the  privilege  claimed  in  this  case,     TIk-  riglit  acfjuired  can  be 


222      Doe  d.  Jeff  v,  Robinson.  E.  T.  1828. 

no  higher  than  the  riglit  to  a  pew,  which  can  only  be  claimed  as  appur- 
tenant to  an  ancient  messuage  or  by  a  faculty.  In  Frances  v.  .Let/y 
Cro.  Jac.  3()(),  it  is  said,  "that  neither  the  ordinary  himself  nor  the 
churchwardens  can  grant  license  of  burying  to  any  within  the  church, 
but  the  parson  only,  because  the  soil  and  freehold  of  the  church  is  only 
in  the  parson,  and  in  none  other;"  but  in  Gibson's  Codex,  542,  this  is 
denied  to  be  the  true  reason,  for  it  would  apply  equally  to  the  church- 
yard, but  that  the  ecclesiastical  laws  have  appointed  the  incumbent  as 
the  proper  judge  of  the  fitness  or  unfitness  of  any  particular  person  to 
liave  the  privilege  of  being  buried  in  the  church.  The  incumbent, 
therefore,  may  exercise  a  discretion  in  each  particular  instance,  where 
application  is  made  for  leave  to  bury  in  the  church,  but  he  has  no 
power  to  grant  to  another  the  privilege  of  burying  there  whomsoever 
lie  pleases.  For  these  reasons  I  concur  in  thinking  that  a  nonsuit  must 
be  entered. 

Rule  absolute. 


DOE  on  the  demise  of  JEFF  and  HUNTER  v.  ROBINSON  and  An- 
other.— p.  296. 

Where  the  tenant  of  lands,  granted  to  him  and  his  heirs  pur  auter  vie,  devised 
them  "to  A.  B.,"  without  saying  more,  and  A.  B.  died,  living  cestui  que  vie  : 
Held,  that  the  heir  of  the  devisor  was  entitled  to  the  lands  as  special  occupant. 

This  was  an  action  of  ejectment  on  the  demise  of  Robert  Jeff  and 
Thomas  Hunter,  the  demise  being  laid  on  the  16th  May,  1827,  against 
John  Robinson  and  Thomas  Dowson  Robinson,  for  the  recovery  of  cer- 
tain lands  in  the  township  of  Northallerton,  in  the  county  of  York.  Plea, 
not  guilty.  At  the  trial  before  Bayhy  J.  at  the  Yorkshire  Summer  as- 
sizes 1827,  a  verdict  was  found  for  the  plaintiff,  subject  to  the  opinion 
of  this  Court  on  the  following  case: — 

By  a  lease,  dated  the  24th  of  November  1783,  and  made  between  the 
Lord  Bishop  of  Durham  of  the  one  part,  and  Thomas  Dowson  of  the 
other  part,  the  said  bishop  did  demise,  lease,  and  to  farm  let  unto  the 
said  Thomas  Dowson,  his  heirs  and  assigns,  all  that  half  oxgang  of  new 
land,  arable,  meadow,  and  pasture,  with  the  appurtenances  lying  in  the 
fields  of  Northallerton  aforesaid,  formerly  called  by  the  name  of  the 
Chapel  Garths,  and  then  divided  into  eight  closes,  and  containing  in  all 
about  twenty-four  acres,  to  have  and  to  hold  unto  the  said  Thomas  Dow- 
son, his  heirs  and  assigns,  from  the  making  of  said  lease,  for  and  during 
the  natural  lives  of  him  the  said  Thomas  Dowson,  John  Dowson,  his 
son,  and  Thomas  Robinson,  and  the  lives  of  the  longest  life  of  them, 
at  the  yearly  rent  or  sum  of  5.?.  \d.  payable  at  the  times  therein  men- 
tioned. 

By  his  will,  dated  21st  November  1808,  and  duly  made,  executed,  and 
attested  to  pass  real  estates,  Thomas  Dowson  being  then  in  possession 
of  the  same  premises  under  the  said  lease,  devised  as  follows: — "  I  give 
my  daughter  Elizabeth  Robinson,  my  two  houses,  situated  in  Bootham, 
nigh  the  city  of  York,  now  tenanted  by  widow  Earl  and  William  Collyer, 
and  my  two  closes,  lying  within  the  township  of  Northallerton,  known 
by  the  name  of  the  Chapel  Garths,  and  west  of  the  barn  close  fthe  said 
two  closes  being  the  lands  in  question,  and  part  of  the  eight  closes  de- 


8  Baunewall  &  Cresswell,  296.  223 

mised  to  Thomas  Dowson  by  the  Bishop  of  Durham).  I  also  give  her 
my  desk  in  my  parlour,  and  she  to  choose  other  furniture  within  my 
house  to  furnish  two  rooms.  I  give  my  daughter  Parthenia  Robinson, 
my  three  closes  called  Bullomoors;  and  also  one  other  close  called  Barn 
Close,  all  the  afortsaid  closes  being  within  the  township  of  Northal- 
lerton. I  give  her  all  the  said  four  closes  for  and  during  her  natural 
life,  and  at  her  decease  I  give  the  said  four  closes  to  her  children  then 
living,  share  and  share  alike;  and  I  order  that  Robert  Robinson,  my  son- 
in-law,  shall  have  no  concern  either  in  letting  the  lands,  or  in  taking 
any  part  of  the  rents  from  the  lands.  And  as  to  all  the  rest  of  my  estate, 
both  real  and  personal,  I  give  to  my  son  John  Dowson,  and  also  a  secu- 
rity for  the  payment  of  20/.  per  annum  for  and  during  the  life  of  my 
daughter  Ann  Dowson,  he  paying  my  said  daughter  Ann  Dowson  40/. 
per  annum,  to  be  paid  out  of  the  rents  arising  from  the  Turks  Banks; 
and  also  all  my  just  debts  and  funeral  expenses,  and  also  for  leasing  the 
half  oxgang  after  my  decease;  and,  lastly,  I  make  my  said  son  John  Dow- 
son my  sole  executor  of  this  my  last  will  and  testament."  Thomas 
Dowson  died  on  the  14th  of  March  1814,  without  having  altered  or  re- 
voked his  said  will,  and  upon  his  death,  Elizabeth  Robinson  entered 
into  possession  of  the  premises  thereby  devised  to  her,  and  received  the 
rents  thereof  until  her  death  on  the  1st  of  February  1826,  at  which  pe- 
riod John  Dowson  and  Thomas  Robinson,  two  of  the  cestui  que  vies  men- 
tioned in  the  said  lease,  were  still  living.  After  the  death  of  Elizabeth 
Robinson,  the  defendants,  her  only  children,  entered  into  possession  of 
the  premises  in  question.  John  Dowson,  the  heir  at  law  as  well  as  re- 
siduary devisee  and  executor  of  Thomas  Dowson,  died  on  the  20th  Fe- 
bruary 1627,  having  previously,  by  his  will,  duly  made,  executed,  and 
attested  to  pass  real  estates,  and  bearing  date  the  20th  September  1822, 
given  and  devised  all  and  every  his  freeiiold  lands,  tenements,  and  he- 
reditaments situate  in  the  township  of  Northallerton,  in  the  county  of 
York;  and  all  other  his  messuages,  lands,  and  hereditaments  whereof  he 
was  seised  or  entitled  unto  in  reversion,  remainder,  or  expectancy,  situ- 
ate in  the  township  of  Northallerton  aforesaid,  and  in  or  near  the  suburbs 
of  the  city  of  York  or  elsewhere  in  the  said  county  of  York;  and  all  his 
the  said  testator's  personal  estate,  unto  the  said  Robert  JcfTand  Thomas 
Hunter,  their  heirs,  executors,  administrators,  and  assigns,  according  to 
the  respective  natures  and  tenures  thereof  ujjon  the  several  trusts  therein 
mentioned.  And  the  said  testator  appointed  iliem  executors  in  trust  of 
his  said  will.  The  said  Thomas  Robinson,  one  of  the  cestui  que  vies 
named  in  the  said  lease  of  the  24lh  November  1783,  is  still  living. 

The  question  for  the  opinion  of  the  Court  was,  what  interest  in  the 
said  two  closes  passed  to  Elizabeth  Robinson  under  the  will  of  Thomas 
Dowson. 

The  case  was  argued  at  the  sittings  in  banc  after  last  Hilary  term  by 

Jllexnnder  for  the  pl.-iintilf,  who  referred  to  IVilluims  v.  'Jc/ci/l,  2  Vcs. 
sen  f)81 ;  liiplci/  v.  iVuteriDorlli,  7  V(.'s.  jun.  4  10;  IVeslfdliinj^  v.  West- 
falintr,  :i  Atk.  'jGO;  2  Roll.  Abr.  tit.  Occupant,  (f.)  pi.  2;  Dyer,  328; 
2  Roll.  Abr.  Occupant,  (O)  pi.  3;  Sailer  v.  Jiuller,  Cro.  Eliz.  f)01. 
Yelv.  9.  Monro,  GfJl.  Noy,  4G;  Com.  Dig.  Estates,  (F  1.);  Bar.  Abr. 
tit.  Estate  for  Life  and  Occupancy,  (li  3.);  St.  Jolin\s  CoUra;c  v.  Flem- 
ing, 2  Vern.  320;  CamphrJlv.  Sujuiifs,  1  Scho    &  Lef.  288. 

Cresswcll  for  the  defendants,  cited  Bac.  Abr.  tit.  Estate  for  Life  and 
Occupancy,  (B  3);  L^wis  Bowie's  case,  11  Co.   83;  flilbcrt's  Tenures, 


224  Doi:  d.  Jkif  v.  Rouinson.   E.  T.  1828. 

p.  3;  Lilt.  s.  5t);  1   Inst.  41;  Edward  Seymour's  case,  10  Co.  98;  Stat. 

2i)  Car.  'J;  Low  v.  Burron,  3  P.  W.  262;  Litt.  s.  3S7;  1  Inst.  239;  Doe  v. 

Ltixton,  ()  T.  11.291. 

»QlcxanJcr  in  rcpK-.  />  7  n 

'  •'  Cur.  adv.  vult. 

Bayley  J.  This  was  an  ejeclment  by  devisees  claiming  under  the 
heir  at  law  and  residuary  legatee  of  Thomas  Dowson,  against  the  chil- 
dren of  Elizabeth  Robinson,  a  devisee  of  the  same  Thomas  Dowson. 
The  property  consisted  of  two  closes  at  Northallerton,  which  Thomas 
Dowson  held  under  a  lease  for  lives  from  the  liishop  of  Durham.  By 
that  lease  the  closes  were  demised  to  Dowson,  his  heirs  and  assigns,  for 
the  life  of  himself  and  two  other  persons,  and  the  life  of  the  longer  liver. 
By  his  will  Thomas  Dowson  devised  these  closes  to  his  daughter  Eliza- 
beth Robinson;  but  there  were  no  words  in  the  devise  to  shew  an  in- 
tention^in  the  testator  to  pass  his  whole  interest,  nor  any  words  of  limi- 
tation; so  that  had  the  property  been  fee-simple,  it  is  clear  an  estate  for 
life  only  would  have  passed;  and  the  question  is,  Whether  it  makes  any 
difference  that  the  property  is  not  fee-simple,  but  an  estate  pur  autre  vie? 
At  common  law,  As  the  original  grant  was  to  Thomas  Dowson  and  his 
heirs,  his  heirs  would  have  taken  as  special  occupants  upon  his  death, 
unless  he  had  made  an  alienation  in  his  lifetime  to  prevent  it.  Plad  he 
aliened  in  his  lifetime  to  a  particular  individual,  without  any  words  of 
limitation,  or  any  thing  to  extend  that  individual's  estate  beyond  his  life, 
his  interest  would  have  ceased  upon  his  death.  His  representatives 
would  have  had  no  claim;  and  unless  Dowson,  or  his  heir,  could  have 
claimed  it,  it  would  have  been  open  to  general  occupancy.  By  the 
statute  of  frauds,  29  Car.  2.  c.  3.  s.  12,  such  an  estate  as  this  is  devisa- 
ble in  manner  therein  mentioned ;  and  if  no  such  devise  thereof  be  made, 
it  shall  be  chargeable  in  the  hands  of  the  heir,  if  it  come  to  him  as  special 
occupant,  as  assets  by  descent,  as  in  case  of  lands  in  fee-simple;  and  if 
there  be  no  special  occupant  thereof,  it  shall  go  to  the  executors  or  ad- 
ministrators of  the  party  that  had  the  estate  thereof  by  virtue  of  the 
grant,  and  shall  be  assets  in  their  hands.  Upon  this  statute  the  owner 
of  an  estate,  pur  autre  vie,  may  devise  it  to  several  in  succession,  so  as 
to  designate  who  shall  occupy  till  cestui  que  vie  dies,  and  to  leave  no 
interval  or  chasm  (3  P.  Wms.  2G2);  but  I  have  not  been  able  to  meet 
with  any  case  which  decides  what  shall  become  of  it,  if  it  be  only  par- 
tially devised,  that  is,  if  it  be  devised  for  a  period  which  expires  before 
the  estate  pur  autre  vie  ends.  In  such  cases  it  must  belong  either  to 
the  representatives  of  the  devisor,  the  representatives  of  the  devisee,  or 
become  the  subject  of  general  occupancy.  Upon  the  language  of  the 
29  Car.  2.  c.  3.  s.  12,  with  the  legislative  explanation  it  receives  from 
the  14  G.  2.  c.  20.  s.  9,  it  seems  to  me  that  it  belongs  to  the  devisor. 
The  language  of  the  29  Car.  2,  is,  that  "any  estate  pur  autre  vie  shall 
be  devisable."  If  there  be  a  devise  which  will  provide  for  the  occupancy 
till  all  the  lives  fail,  the  estate,  that  is,  the  whole  estate,  will  be  devised; 
upon  a  devise  which  may  or  must  leave  a  chasm  before  all  the  lives  fail; 
tiiere  is  only  a  partial  devise  of  the  estate,  and  as  to  the  residue  there  is 
no  devise  thereof.  If,  for  instance,  A.  have  an  estate  for  the  lives  of 
B.,  C,  and  D.,  and  he  devise  it  to  E.  until  either  B. ,  or  C,  orD.,  die, 
he  devises  the  property  for  a  part  only  of  the  estate  pur  autre  vie,  and 
as  to  the  residue  of  that  estate  he  makes  no  devise  thereof.  The  next 
provision,  then,  in  the  29  Car.  2.,  "if  no  such  devise  thereof  be  made," 


8  Barnewall  &  Cress  WELL,  296.  225 

may,  and  upon  the  principles  on  which  that  act  is  founded,  viz.  to  pre- 
vent general  occupancy,  ought  to  attach  upon  the  portion  which  is  not 
devised,  and  then  that  portion  will  be  chargeable  in  the  hands  either  of 
the  heir  or  executor;  and  though  it  is  not  in  terms  mentioned  whose  heir 
is  contemplated,  it  is  shewn  whose  executor  is  contemplated,  viz.  the 
executor  of  the  party  that  took  the  estate  by  virtue  of  the  grant,  which 
must  mean  the  executor  of  the  devisor,  not  the  executor  of  the  devisee. 
And  if  it  be  the  devisor's  executor  that  is  contemplated  when  executors 
are  mentioned,  it  must  be  the  devisor's  heir  that  is  contemplated  when 
the  heir  is  mentioned.  And  this  exposition  of  the  29  Car.  2.  is  suppor- 
ted and  explained  by  the  provision  in  the  14  G.  2.  c.  20.  s.  9.  The 
former  statute  had  made  the  undevised  estate  assets  in  the  hands  of  the 
heir,  or  of  the  executor;  but  it  had  made  no  provision  as  to  the  residue, 
where  the  estate  was  made  personal  assets.  The  14  G.  2,  therefore, 
provides  that  estates  pur  autre  vie,  of  which  there  shall  be  no  special 
occupant,  of  which  no  devise  shall  have  been  made,  or  so  much  thereof 
as  shall  not  have  been  so  devised,  shall  go,  be  applied,  and  be  distributed, 
in  the  same  manner  as  the  personal  estate  of  the  testator  or  intestate. 
That  act,  therefore,  evidently  proceeds  upon  the  assumption  that  so  much 
of  an  estate  pur  autre  vie  as  is  not  subject  to  special  occupancy,  or  has 
not  been  devised,  is  to  pass  to  the  executor.  In  this  case,  we  think  that 
judgment  must  be  given  for  the  lessors  of  the  plaintiff,  inasmuch  as 
nothing  but  an  estate  for  the  life  of  Elizabeth  Robinson  is  devised;  of  so 
much  of  the  estate  pur  autre  vie  as  remained  at  her  death,  there  was  no 
devise,  and  that  part,  therefore,  belonged  not  to  the  representative  of 
Elizabeth  Robinson,  but  to  the  heir  of  Thomas  Dowson  as  special  oc- 
cupant, and  not  to  his  devisee. 

Postea  to  the  plaintiff. 


DOE  on  the  demise  of  HENNIKER  v.  WATT.— p.  30S. 

By  a  memorandum  of  a^;recmcnt,  in  consideration  of  tl»e  rent  and  condilions  there- 
inafter mentioned,  A  was  to  luive,  hold,  and  occupy,  as  on  lease,  certain  pre- 
mises therein  specified,  at  a  certain  rent  i)er  acre.  And  it  was  stipulated,  tluit 
no  buildings  should  be  included  or  leased  bv  virtue  of  the  agreement;  and  it  was 
further  agreed  and  stipulated,  that  A.  should  take,  at  the  rent  aforesaid,  certain 
other  parcels,  as  the  same  mifrht  fall  in;  and,  lastly,  it  was  stipulated  and  con- 
ditioned that  A.  sliould  not  assign,  transfer,  or  iinderlct,  any  \y.\n  of  the  said 
lands  and  premises  otherwise  than  to  his  wife,  child,  or  children:  Held,  that  by 
the  last  clause  a  condition  was  created,  for  the  breach  of  which  the  lessor 
nught  maintain  an  ejectment. 

Ejectmknt  brought  to  recover  certain  lands  and  premises  in  the 
county  of  Somerset.  This  cau.'^c  wa%  tried  before  Jiiirroiiif/i  J.,  at  the 
Summer  assizes  for  the  county  of  Somerset,  1S27.  It  appeared  that  the 
defendant,  in  October  182.'),  became  Iciiant  to  the  lessor  of  the  plaintifl" 
of  the  premises  in  rpjcstion, tinder  and  I)y  virtue  of  the  following  instru- 
ment, signed  by  the  defendant,  and  bearing  date  the  2'lth  day  of  Oc- 
tober 1825:  **  Klcmorandum  of  agreement  made  with  George  Watt, 
bailiff,  of  the  manor  of  Chalcolt,  otherwise  Calcott,  in  the  county  of 
Somerset.  The  said  G.  Watt,  in  consideration  of  the  rent  and  condi- 
tions hereinafter  mentioned,  is  to  have,  hold,  and  occupy,  as  on  lease, 
every  part  and  parcel  of  all  that  piece  or  tract  of  turbary  land,  com- 
monly called  The  Five  Hundred  Acres,  situate  in  the  said  manor,  which 

VOL.    XV.  29 


226  Dor.  d.  HKNNiKi:ri  i'.  Watt.  E.  T.  1828. 

jnay  now  be  in  hands  and  disengaged  or  unlet,  for  the  term  of  twenty- 
one  years  from  Lady-day  lS2r),  at  llie  yearly  rent  of  5s.  an  acre,  paya- 
ble quarterly,  and  free  and  clear  of  all  charges,  rates,  and  outgoings 
whatsoever;  and  is  likewise  to  have,  at  the  like  rent  of  5*.  an  acre,  all 
and  every  parcel  of  the  said  Five  Hundred  Acres  which  may  fall  in  hand 
and  become  unlet  between  this  time  and  the  expiration  of  the  said  term 
of  twenty-one  years;  provided  always,  that  the  entire  or  total  quantity 
of  land  in  the  said  Five  Hundred  Acres,  occupied  by  the  said  G.  Watt 
by  virtue  of  this  agreement,  shall  never  exceed  100  acres  in  the  whole; 
and  that  the  term  or  lease  of  all  and  every  parcel  occupied  or  possessed 
under  this  agreement  shall  cease  or  determine  in  twenty-one  years  from 
Lady-day  aforesaid.  And  it  is  stipulated  that  no  house  or  cottage,  sta- 
ble or  other  substantial  building,  nor  any  parcel  of  land  on  which  such 
building  now  stands,  or  may  hereafter  be  erected,  shall  be  included  in 
or  leased  by  virtue  of  this  agreement.  And  it  is  further  stipulated  and 
agreed  that  the  said  G,  Watt  shall  take  and  occupy,  at  the  rent  aforesaid, 
every  parcel  of  land  in  the  said  Five  Hundred  Acres  as  the  same  may 
fall  in  hand,  without  choice,  exception,  or  refusal,  until  the  total  quantity 
amounts  to  100  acres  as  before  mentioned.  And  also  that  G,  Watt 
shall,  on  possession,  proceed  to  cultivate  and  improve  every  parcel  as  the 
same  comes  to  his  occupation,  whether  it  be  late  or  early  in  the  said 
term  of  twenty-one  years,  in  like  manner  or  method  as  he  means  towards 
the  parcels  of  which  he  has  immediate  possession.  And,  lastly,  it  is 
stipulated  and  conditioned  that  G.  Watt  shall  not  assign,  transfer, 
underlet,  or  part  with  any  part  or  parcel  of  the  said  lands  or  premises 
otherwise  than  to  his  wife,  child,  or  children."  It  was  proved  that  the  de- 
fendant had  underlet  part  of  the  demised  premises;  and  it  was  insisted, 
on  the  part  of  the  lessor  of  the  plaintiff,  that  the  last  clause  in  the  agree- 
ment operated  as  a  condition,  and  that  the  underletting  was  a  breach  of  that 
condition.  The  learned  Judge  was  of  opinion  that  the  clause  did  operate 
as  a  condition,  but  he  reserved  liberty  to  the  defendant  to  move  to  enter 
a  nonsuit  on  that  point,  if  the  verdict  should  be  against  him.  The  de- 
fendant then  gave  some  evidence  which,  it  was  contended,  clearly  shewed 
that  the  defendant  had  underlet  with  the  knowledge,  and  in  some  degree 
by  the  directions  of  the  lessor  of  the  plaintiff,  and  amounted  to  a  waiver, 
if  not  to  an  express  licence.  The  learned  Judge  thought  that  the  evi- 
dence applied  to  other  lands  of  the  lessor's  which  the  defendant  managed 
as  his  bailiff,  and  directed  the  jury  to  find  a  verdict  for  the  plaintiff. 
Jeremy  in  last  Michaelmas  term  obtained  a  rule  nisi  for  a  nonsuit,  on 
the  ground  that  the  clause  prohibiting  the  defendant  from  assigning  or 
underletting  did  not  operate  as  a  condition,  but  merely  as  a  covenant; 
and,  secondly,  for  a  new  trial,  on  the  ground  that  the  evidence  of  licence 
had  not  been  distinctly  presented  to  the  jury. 

On  a  former  day  Moody  shewed  cause,  and  cited  Litt.  s.  328,  329, 
330;  Co.  Litt.  204  «.;  Shepp.  Touch.  120;  Com.  Dig.  tit.  Condition 
(A2);  Litt.  s.  3G5;  Plowd.  142;  Co.  Litt.  219  h.\  Vin.  Abr.  Condition 
(E  r.);  Co.  Litt.  203  h\  CromweVs  case,  2  Co.  270. 

Jerem?/,  contra,  cited  1  Roll.  Abr.  414;  3  Vin.  Abr.  Condition  (R), 
69;  Muchel  v.  Dunton,  2  Leon.  33;  Doe  d.  Willson  v.  Phillips,  2 
Bingh.l3;  Doe  d.  Wilson  v.  Jlhel,  2  M.  &  S.  541;  Litt.  s.  328;  4 
Cruise   Dig.    378  ;   CorbePs  case-,    1    Rep.    SG  j  Cooper  v.   AndrewSy 

Cur.   adv.  vult 


8  Barnewall  &  Cresswell,  308.  227 

Baylet  J.  This  was  aji  ejectment  brought  for  breach  of  a  condition 
contained  in  an  agreement  for  a  lease.  There  are  two  questions;  first, 
"Whether  the  agreement  contained  a  condition  or  not?  the  second,  Whe- 
ther the  plaintiif  had  not  destroyed  his  right  to  enter  upon  the  lands  de- 
mised for  the  breach  of  the  condition?  because  the  act  constituting  the 
supposed  breach  \\as  done  with  his  concurrence.  The  Court,  at  the 
time  of  the  argument,  felt  that  this  question  had  not  been  submitted  to 
the  jury,  and,  therefore,  held  that  there  ought  to  be  a  new  trial,  even  if 
there  was  a  condition  contained  in  the  agreement.  But  if  there  was  no 
such  condition,  then  there  ought  to  be  a  nonsuit.  The  parties  stood  in 
the  relation  of  landlord  and  tenant.  There  was  an  agreement  made  be- 
tween the  lessor  of  the  plaintiff  and  defendant,  by  which  the  defendant, 
in  consideration  of  the  rent  and  conditions  thereinafter  mentioned,  was 
to  have,  hold,  and  occupy,  as  on  lease,  every  part  and  parcel  of  the  tur- 
bary land  called  The  Five  Hundred  Acres,  &c.  which  might  then  be 
underlet  or  disengaged,  for  twenty-one  years  from  Lady-day  1826,  at 
the  rate  of  5s.  per  acre,  payable  quarterly,  clear  of  all  charges  and  out- 
goings whatsoever;  and  to  pay  the  like  rent  of  5s.  per  acre  for  all  and 
every  parcel  of  the  Five  Hundred  Acres  which  might  fall  into  hand  or 
come  into  possession  before  the  expiration  of  the  said  term  of  twenty- 
one  years.  Then  it  was  stipulated  that  no  house,  &c.  should  be  in- 
cluded in  or  leased  by  virtue  of  the  agreement,  and  it  was  further 
stipulated  that  the  said  G.  Watt  should  take  and  occupy,  at  the  rent 
aforesaid,  every  parcel  of  the  land  in  the  said  Five  Hundred  Acres  as 
the  same  might  fall  in  hand;  and  also  that  G.  Watt  should,  on  posses- 
sion, proceed  to  cultivate  every  parcel  as  the  same  came  to  his  occupa- 
tion. And,  lastly,  it  was  stipulated  and  conditioned,  that  the  said  G. 
Watt  should  not  assign,  transfer,  underlet,  or  part  with  any  part  of  the 
said  lands  otherwise  than  to  his  wife,  child,  or  children.  The  question 
is,  Whether  a  condition  be  contained  in  the  last  clause?  This  docu- 
ment is  not  under  seal;  and  it  has  been  said  by  the  defendant's  counsel 
that  it  is  not  therefore  calculated  to  raise  a  condition.  But  the  circum- 
stance of  its  not  being  under  seal  is  immaterial.  A  party  who  demises 
land  by  an  instrument  not  under  seal  may  introduce  a  condition  into  it, 
provided  he  use  apt  and  proijcr  words  for  the  purpose.  The  words 
"  provitlcd  always,  sub  condilionc,  ita  quod,"  used  in  a  conveyance  of 
real  estate,  by  themsfdvos,  make  the  estate  conditional.  But  in  a  lease 
for  years  no  precise  form  of  words  is  necessary  to  make  a  condition.  It 
is  sufficient  if  it  appear  tliat  the  words  uset!  were  intemhid  to  have  tin; 
effect  of  creating  a  condition.  They  must  be  the  words  of  the  lamllord, 
because  he  js  to  impose  the  condition.  Here,  first,  the  agreement  pur- 
ports to  be  in  consideration  of  the  rent  and  co«^/<7/o».y  thereinafter  men- 
tioned; and  then  the  words  "it  is  stipulated"  occur  more  than  once;  ■ 
and  then,  in  the  last  sentence  of  the  iiisinnnenf,  roiue  the  words,  <*  it  is 
lastly  stipulated  antl  conditioned,  that  Walt  siiall  not  assign,  transfer, 
underlet,  or  part  with  ar>y  part  of  the  lands,  otherwise  than  to  his  wifo 
or  children."  These  wonls  are  clearly  introduced  in]o  the  instrument 
on  the  part  of  the  lessor,  for  they  are  for  his  benefit.  'I'hc  word  condi- 
/ioned  is  fairly  a  word  of  conditioti.  In  pleading,  a  bonil  is  stated  to  bo 
conditioned  for  j)aymcnt  of  money.  It  is  said  that  the  word  slipuldlcJ. 
and  the  word  condUinncil,  being  used  together,  have  the  same  mean- 
ing, and  inqiort  a  covenant,  and  not  a  condition;  but  there  arc  several 
authorities  \vlii<-Ii  shew  ili;il  it  words  both  of  novcnaiit  anil  condition  aio 


228  Doe  d.  Hennikkr  v.  Watt.  E.  T.  1828. 

used  in  tlic  same  instrument,  they  bolli  shall  operate.  If  the  word 
stipulated  import  a  covenant,  it  will  operate  as  such;  and  if  the  word 
couditioncd  import  a  condition,  it  must  also  operate.  In  Simpson  v. 
Tiltcrell,CYO.  Eliz.  242,  one  Bcnbow  let  the  land  to  the  defcndant/jro- 
viso  semper  and  it  was  further  covenanted  that  the  lessee  should  not 
assign  except  to  the  lessor.  These  words  were  held  to  create  a  condi- 
tion; because  it  was  a  general  rule  tliat  where  a  proviso  is  that  the  lessee 
shall  perform  or  not  perform  a  thing,  and  no  penalty  to  it,  this  is  a  con- 
dition, otherwise  it  is  void;  but  if  a  penalty  is  annexed  it  is  otherwise. 
So  in  The  Earl  of  Pembroke  v.  Sir  H.  Berkeley,  Cro.  Eliz.  384, 
where  there  was  a  grant  of  a  walk  in  a  forest,  "  provided  also,  and  the 
said  grantee  doth  covenant  not  to  fell  or  cut  any  wood  but  for  necessary 
browse,"  and  the  heir  of  the  grantee  cut  down  four  oaks,  the  question 
was,  Whether  this  was  a  condition  or  a  covenant?  Gawdy  and  Clench 
thought  it  was  a  covenant  only,  but  Popham  and  Fenner  thought  it  was 
a  condition;  and  afterwards,  upon  a  conference  amongst  all  the  justices 
of  England,  it  was  held  by  the  greater  part  of  them  to  be  a  condition. 
In  Harrington  v.  Wise,  Cro.  Eliz.  486,  where  the  words  were,  ''it  ia 
covenanted  and  agreed  between  the  parties  that  Harrington  doth  let  the 
lands  for  five  y^zTs,  provided  always,  that  Wise  shall  pay  to  the  defen- 
dant during  the  term  120/.  per  annum,"  it  was  held  to  be  a  good  reser- 
vation of  rent;  but  Popham,  J.  said  that  it  was  a  reservation  and  condi- 
tion also,  as  in  the  case  of  Sir  H,  Berkeley,  where  a  provision  joined 
with  the  words  of  covenant  made  it  a  condition  and  a  covenant  also.  In 
Litt.  s.  329,  it  is  said,  if  the  words  be,  "provided  always,  that  B.  do 
pay  to  A.  such  rents,"  the  feoffee  hath  but  an  estate  on  condition.  Lord 
Coke,  in  commenting  on  that  section  in  Co.  Litt.  203  b,  says.  So  it  is 
if  a  man  by  indenture  letteth  land  for  years;  provided  always,  and  it  is 
covenanted  and  agreed  between  the  said  parties  that  the  lessee  shall  not 
alien;  and  it  was  adjudged  that  this  was  a  condition  by  force  of  the  pro- 
viso, and  a  covenant  by  force  of  the  other  words.  We  are  of  opinion, 
therefore,  that  by  the  last  clause  of  the  instrument  in  question  a  condi- 
tion was  created;  and  that  being  so,  the  rule  for  a  nonsuit  cannot  be 
made  absolute.  But  we  think  the  rule  should  be  absolute  for  a  new 
trial,  because  there  was  evidence  to  shew  that  the  land  was  underlet  by 
the  defendant  with  the  consent  and  express  licence  of  the  lessor,  and 
that  evidence  was  not  submitted  to  the  jury. 

Rule  absolute  for  a  new  trial. 


WHYTT  V.  M'INTOSH  and  Others.— p.  317. 

Where  a  defendant  obtains  a  mandamus  under  13  G.  3.  c.  63.  s.  44,  for  examin- 
ing witnesses  in  India,  tlie  plaintiff,  gaining  the  cause,  is  entitled  to  the  costs  of 
cross-examining  those  witnesses. 


£ND    OF    EASTER    TERM. 


•      CASES 

ARGUED  AND  DETERMINED 

IN    THE 

COURT    OF    KING'S    BENCH, 

IN 

TRINITY  TERM, 

In  the  Ninth  Year  of  the  Reign  of  George  IV.— 1S2S. 

The  KING  V.  ROBERT  BROOKS.— p.  321. 

Wlicre  a  party  had  been  sworn  into,  and  had  exercised  a  corporate  office  for 
more  than  six  years,  the  Court,  in  the  exercise  of  their  discretion,  and  without 
deciding  whether  he  was  pi-otected  by  the  32  G.  3.  c.  58.,  refused  to  grant  a 
quo  warranto  information  against  him,  on  the  ground  of  his  not  having  been 
sworn  in  before  the  proper  officer. 


GRIMMAN  V.  LEGGE.— p.  324. 

A.  demised  to  B.  the  first  and  second  floor  of  a  house  for  a  year,  at  a  rent  paya- 
ble quarterly.  During  a  current  quarter,  some  dispute  arising  between  the 
parties,  B.  told  A.  that  she  would  quit  immediately.  The  latter  answered  that 
she  might  go  when  she  pleased.  B.  (juittcd,  and  A.  accepted  possession  of  the 
apartments:  Held,  that  A.  could  neither  recover  the  rent,  which,  by  virtue 
of  the  original  contract,  would  have  become  due  at  the  expiration  of  the  cur- 
rent quarter;  nor  rent  pro  rata,  for  the  actual  occupation  of  the  premises  for 
any  period  short  of  the  quarter. 

Assumpsit  for  use  and  occupation.  Plea,  general  issue.  At  the  trial 
before  Lord  Tcndcrden  C.  J.,  at  the  Middlesex  sittings  after  last  term, 
it  appeared  that  in  October  1S2(),  the  plaintiff  agreed  to  let  to  the  defend- 
ant for  a  year  from  the  2.5th  of  December  following,  af  a  rent  of  .OO/. , 
payable  fpiarterly,  the  first  and  second  floor  of  a  house  in  York  Sireet, 
Rryanstone  Square.  The  defendant  entered  at  ("iirislmas,  and  paid  a 
fjuarter's  rent  on  the  2.5lh  of  March  1S27.  In  April  a  dispute  liaving 
taken  place  between  the  plaintiffand  defendanl,  tlie  hitter  said  she  would 
quit.  The  plaintiff  said  that  she  might  go  when  she  pleased,  and  he 
should  be  glad  to  get  rid  of  her.  The  defendant  began  to  remove  her 
furniture  on  the  following  day,  and  continued  removing  it  for  three  days. 
On  the  1 9th  of  April  she  delivrred  \.\\v.  keys  of  tlie  rooms  to  the  plaintif]', 
and  he  accepted  them.  Upon  (his  Lord  Tnilcrdcn  told  the  jury  that 
(he  defendant  was  liable  to  pay  the  ^[uartci's  rent  due  at  midsummer 


^30  TlNNEY  l\  PiNNEV.    T.  T.  1828. 

lS2t),  unless  tlicTc  was  an  airrecment  between  the  plaintiff  and  defend- 
ant that  the  latter  should  quit  without  i)aying  any  rent,  and  he  directed 
them  to  find  for  the  defendant  if  they  thought  from  the  evidence  that 
such  an  agreement  was  made  between  the  parties.  The  jury  having 
found  a  verdict  for  the  defendant, 

Campbell  now  moved  for  a  new  trial,  and  cited  Mollelt  v.  BraynCy 
2  Campb.  103;    fVhitchead  y.  Clifford,  5  Taunt.  518. 

Lord  Tentekdex  C.  J.  There  was  an  express  contract  to  pay  a 
(|uarter's  rent  at  Midsummer;  before  that  time  arrived,  some  dispute 
arose  between  the  parties.  The  tenant  said  to  the  landlord^  I  shall  quit; 
and  the  latter  said,  you  may  do  so,  and  I  shall  be  glad  to  get  rid  of  you. 
The  defendant  then  removed  her  furniture,  and  sent  the  keys  of  the 
rooms  to  the  plaintiff,  and  he  accepted  them,  I  thought  that  the  jury 
might  presume  that  the  original  contract  between  the  parties  was  re- 
scinded. 

Bayley  J.  Whiteheads.  Clifford,  5  Taunt.  518,  shews  that  the 
plaintiff  cannot  recover  the  rent  for  the  whole  quarter.  But  then  it  is 
said  he  is  entitled  to  recover  rent  pro  rata  for  so  long  a  time  as  the  defend- 
ant occupied  his  premises.  Where  there  is  an  express  contract  between 
the  parties,  none  can  be  implied.  The  plaintiff,  therefore,  having  des- 
troyed his  right  to  recover  the  rent  according  to  the  contract,  has  des- 
troyed it  altogether.  Where  a  party  by  agreement  engages  to  pay 
freight  on  arrival  at  a  specified  port,  and  the  ship  never  arrived  at  that 
port,  but  landed  her  cargo  at  an  intermediate  point,  and  it  was  accepted 
by  the  freighter:  it  was  held  that  the  plaintiff  was  not  entitled  to  re- 
cover a  proportionable  part  of  the  freight  for  such  part  of  the  voyage  as 
the  ship  performed;  because  where  there  is  an  express  contract,  the  law 
will  not  imply  one.  Cook  v.  Jennings,  7  T.  R.  3S1.  So  in  this  case, 
the  parties  having  entered  into  an  express  contract,  by  which  the  rent 
was  to  be  paid  quarterly,  I  think  the  law  will  not  imply  a  contract  to 
pay  rent  for  any  period  less  than  a  quarter. 

Rule  refused. 


The  KING  v.  The  Justices  of  BERWICK-UPON-TWEED.— p.  327. 

A  rate  in  the  nature  of  a  county  rate  may  be  levied  in  Berwick-upon-Tweed, 
that  being  a  place  not  subject  to  the  commission  of  the  peace  of  any  county  in 
England,  and  never  having  contriliuted  to  a  rate  made  for  any  county,  although 
it  does  not  lie  within  the  l)ody  of  an  English  county,  and  although  no  rate  had 
ever  been  levied  there  before,  the  corporation  having  defrayed  out  of  their  own 
funds  the  charges  to  which  the  sums  raised  by  a  county  rate  are  applicable. 


BARNARD  PINNEY  v.  JOEL  PINNEY.— p.  335. 

In  trover  for  a  chattel  claimed  by  the  i)lainli(r,  as  vendee  of  an  executor,  the  will 
is  not  evidence  of  the  title  of  the  executor.     The  probate  must  be  produced. 

Trovek  for  a  horse  and  gig.  Plea  not  guilty.  At  the  trial  before  Lord 
Tenlerden  C.  J.,  at  the  Middlesex  sittings  after  last  Easter  term,  the  fol- 
lowing appeared  to  be  the  facts  of  the  case: — The  defendant's  father  died 
in  March  1S27,  having  left  several  testamentary  papers.  Francis  Pin- 
iioy,  the  defendant's  brother,  claimed  to  be  executor,  and  the  defendant 


8  Barnev^^all  &  Cresswell,  335.  231 

.•>iso.  The  Ecclesiastical  Court,  at  the  time  of  the  trial,  had  not  granted 
probate  of  any  of  the  wills.  Francis  Pinney  sold  lo  the  [jlnintilTthe  horse 
and  gig  (which  had  been  part  of  the  property  of  the  testator) ;  but  before 
and  after  such  sale,  the  defendant  frequently  used  it,  and  finally  carried 
it  away,  and  converted  it  to  his  own  use.  Francis  Pinney,  being  called 
as  a  witness,  stated  that  he  was  one  of  the  executors  of  his  father,  and 
that  he  sold  the  horse  and  gig  to  the  plaintiff.  The  plaintiff  then  offered 
to  give  in  evidence  the  wills  or  testamentary  papers  by  which  Francis 
Pinney  was  appointed  executor.  It  was  objected,  that  a  will  of  person- 
al estate  was  of  no  effect  until  probate  ;  that  it  was  no  will  until  it  was  al- 
lowed as  such  in  the  spiritual  court,  it  being  for  that  court  to  judge 
whether  it  be  a  will  or  not.  '{a)  Lord  Tenterclen  C.  J.  held  the  produc- 
tion of  the  probate  to  be  necessary  to  prove  the  title  to  personal  proper- 
ty under  the  will,  and  refused  to  receive  the  will  itself.  No  probate  having 
been  produced,  he  said,  that  if  the  plaintiff  had  proved  a  clear  undisputed 
possession,  it  might  have  been  sufficient;  but  here  it  appeared,  that  the 
defendant  before  and  after  the  sale  to  the  plaintiff  used  the  horse  and  gig. 
The  plaintiff  had  no  exclusive  possession,  and  Francis  Pinney  could 
have  no  title  as  executor,  unless  the  will  was  allowed  by  the  spiritual 
court,  and  probate  was  obtained.     The  plaintiff  elected  to  be  nonsuited. 

(rurney  novv  moved  for  a  new  trial;  and  contended,  that  one  of  several 
executors  might,  before  probate,  sell  the  property  of  the  testator,  and 
give  a  good  title  to  the  vendee,  and  that  before  probate  the  will  must 
be  the  only  evidence  of  the  right  of  the  executor.  [^Bayley  J.  When 
the  probate  is  granted,  then,  by  virtue  of  the  will,  all  the  property  of  the 
testator  vests  from  the  time  of  his  death  in  the  executor;  you  did  not 
prove  that  Francis  Pinney  was  an  executor,  for  no  probate  was  proved. 
Non  constat  that  the  will  under  which  he  claimed  to  be  executor  is  a 
valid  will,  unless  it  be  allowed  as  such  by  the  Ecclesiastical  Court.  Here 
the  horse  and  gig  were  delivered  to  the  plaintiff,  who  had  no  title  to 
them.] 

Lord  Tentkkden  C.  J.  I  thought  at  the  trial,  and  lam  still  of  the 
same  opinion,  there  was  no  proof  of  title  in  the  plaintiff. 

Rule  rcfusefl. 

(«)  Channtrr  v,  C/iauntcr,  cited  in  Vincr,  Executors  (A  a),  20.,  ami  1  niirn, 
E.  L.  Wills,  I'rohato,  7. 


JONES  V.  KENRICK.— p.337. 

I'.y  the  Welch  jiulicaturc  act,  5  G.  4.  c.  lt'6.  8.  21.,  it  is  enartrd  that  in  all  IranM- 
tory  actions  which  sliallbc  brought  In  any  court  of  record  out  of  the  prinrijjali- 
ty,  and  the  debt  or  daniapes  recovered  shall  not  amount  to  .'JO/.,  and  it  sliaii  a])- 
pcar  on  the  evidence  given  on  the  trial  that  the  cause  of  action  arose  in  the 
principality,  and  that  tlie  defendant  was  resident  in  Wales  at  the  time  of  the 
service  of  any  writ  or  other  mesne  process  served  on  liim  in  such  action,  and  it 
shall  be  so  testified  niuhrr  the  liund  of  the  Jud^.'ie  who  tried  the  cause,  a  judK- 
ment  of  nonsuit  shall  be  entered  :  Held,  that  it  is  discretionary  in  the  judge 
who  tries  the  cause  to  grant  or  refuse  the  certificate  nientioned  in  the  act ;  and 
that  where  the  Judge  has  refused  to  certify,  this  Court  has  no  power  to  order 
a  judgment  of  nonsuit  to  be  entered. 

Held,  by  Lord  Tmtrrdrn  C.  J.  at  Nisi  Prius,  that  it  lies  >ipnn  ihr  defendant  to 
shew  that  lie  was  residing  in  Wales  at  the  time  when  the  writ  or  mesne 
process  was  served  on  him  in  the  action,  and  that  general  evidence  that  his 
usual  place  of  residence  both  l)efore  and  subsequent  tn  the  commencement  of  the 
action,  was  in  Wales,  is  not  sufficient. 


>32  Lestkh  v.  Jenkins.  T.  T.  1828. 


l.ESTER  V.JENKINS.— p.  339. 

Dcchiration  v\i)on  a  bill  of  exchange,  drawn  on  the  29th  November,  1827,  pay- 
able two  months  after  date,  was  entitled  generally  of  Hilary  term  1828; 
Held,  that  it  was  competent  to  the  plaintitVto  prove  by  the  parol  evidence  of  the 
attorney  (without  producinu;  the  writ)  that  the  action  was  commenced  after 
the  1st  of  February,  when  the  bill  became  due. 

Assumpsit  by  the  indorsee  against  the  defendant,  asacceptorof  a  bill 
of  exchange  bearing  date  the  29th  day  of  November  1827,  payable  two 
nionliisafUT  date.  At  the  trial  before  Lord  Tenferden  C.  J.,  at  the  Lon- 
don sittings  after  last  Easter  term,  it  appeared  that  the  declaration  was 
entitled  generally  of  Hilar}'-  term,  and  that  the  bill  of  exchange  became 
due  on  the  1st  of  February.  It  was  contended,  on  the  part  of  the  defen- 
dant, that  as  the  declaration  was  entitled  generally  of  the  term,  it  related 
to  the  first  day  of  the  term,  and  that  the  action,  therefore,  appeared  to 
liave  been  commenced  before  the  cause  of  action  accrued.  The  plaintiff's 
attorney  then  proved  that  he  did  not  receive  his  instructions  to  com- 
mence the  action  until  the  bill  had  been  dishonoured,  and  that  he  took 
no  proceedings  until  after  the  first  of  February.  It  was  insisted  that  this 
evidence  of  the  time  of  the  commencement  of  the  suit  was  not  admissi- 
ble, but  that  the  writ  itself  ought  to  have  been  produced.  I^ord  Tenter- 
den  C.  J.  overruled  the  objection,  and  directed  the  jury  to  find  a  verdict 
for  the  plaintiff",  but  reserved  liberty  to  the  defendant  to  move  to  enter  a 
nonsuit. 

Brodrick  now  moved  accordingly,  and  cited  Morris  \.  Piigh  and 
Harwoody  3  Burr.  1241;  Granger  v.  George,  5  B.  &  C.  149. 

Lord  Tenterden  C.  J.  The  indorsement  on  the  writ  is  no  more  than 
the  declaration  of  the  attorney  in  the  case. 

Bavley  J.  The  memorandum  is  prima  facie  evidence  of  the  lime  of 
the  commencement  of  an  action,  and,  uncontradicted,  is  conclusive. 
But  it  is  clearly  established  by  authorities  that  either  party  may  shew 
by  evidence  the  actual  time  of  the  commencement  of  the  suit  to  be  dif- 
ferent from  that  which  it  purports  to  be  by  the  record.  The  only  ques- 
tion in  this  case  is.  Whether  that  can  be  shewn  by  any  other  medium  of 
of  proof  than  the  writ.  I  cannot  entertain  any  doubt  upon  that  point.  A 
party  cannot  prove  the  contents  of  the  writ  without  producing  it;  but  he 
may  prove  the  time  when  the  action  was  commenced,  without  proving 
the  contents  of  the  writ. 

Rule  refused  {a). 

(a)  See  Jniton  v.  Cirdlcstonr,  5  B.  Sc  A.  847.  Lyttleton  v.  Cross,  3  B.  &  C. 
317. 


The  KING  v.  SMITH  and  Two  Others.— p.  341. 

Wlicre  an  indictment  for  a  conspiracy  alleged,  that  "at  the  court  of  quarter  ses- 
sions holden,  5cc.  an  indictment  against  A.  B.  was  preferred  to,  and  found  by 
the  grand  jury:"  Held,  that  this  allegation  must  be  proved  by  a  caption  regu- 
larly drawn  up  of  record,  and  that  the  minute-book  kept  by  the  deputy  clerk 
of  the  peace  could  not  be  received  as  evidence  of  the  finding  of  the  bill,  al- 
though no  record  had  been  in  fact  drawn  up. 


8  Barnewall  &  Cresswell,  341.  233 

Indictment  for  a  conspiracy.  The  second  count  staled,  that  at  the 
general  quarter  sessions  of  the  peace  holden  at,  &c.  on  &c.  before  cer- 
tain of  his  majesty's  justices  assigned,  &.c.  a  certain  bill  of  indictment 
against  Henry  Smith,  for  a  certain  felony  therein  mentioned,  was  duly 
preferred  to  and  found  by  a  certain  grand  jury  of  the  county  then  and 
there  duly  assembled  in  that  behalf,  and  that  it  then  and  there  became 
and  was  material  and  necessary  to  examine  one  W.  B.  as  a  witness  in 
support  of  such  indictment,  and  that  defendants  conspired  to  prevent 
W.  B.  from  attending  and  being  examined,  &c.  The  third  and  fourth 
counts  began  in  like  manner,  by  stating  that  a  bill  was  preferred  and 
found  at  the  quarter  sessions.  There  were  several  other  counts  in  the 
indictment  not  material  to  be  noticed.  Plea,  not  guilty.  At  the  trial 
before  Vaughan  B.  at  the  Summer  assizes  for  INTonmouthshire,  1827, 
the  prosecutor,  in  order  to  prove  the  allegation  tliat  a  bill  was  found 
against  H.  Smith,  called  the  deputy-clerk  of  the  peace,  who  produced 
an  indictment  indorsed  a  true  bill,  but  there  was  no  general  heading  or 
caption  to  it.  For  the  defendants,  it  was  objected  that  this  could  not  be 
admitted  for  want  of  a  caption.  The  witness  then  stated,  that  it  was 
not  the  practice  to  make  up  the  records  in  form  until  they  were  desired 
to  do  so,  but  that  in  his  book  minutes  were  made  of  the  proceedings 
from  which  the  records  were  afterwards  made  up.  The  book  was  pro- 
duced, and  the  following  minute  read  :  *'  Monmouthshire  sessions,  lOtlx 
July  1S26.  At  the  general  quarter  sessions  of  the  peace  held  at  Usk 
in  and  for  the  said  county,  this  10th  day  of  July  1826,  before  A.  B., 
C.  D. "  &c.  &c.  Then  followed  minutes  of  the  business  done  at  those 
sessions.  The  learned  Judge  received  this  as  evidence  of  the  caption 
of  the  indictment  against  H.  S.,  and  two  of  the  defendants  were  found 
guilty  on  the  second,  third,  and  fourth  counts  above  mentioned.  In 
IVlichaelmas  term  Lxidloic  Serjt.  oi)tained  a  rule  nisi  for  a  new  trial,  on 
the  ground  that  the  minute-book  of  the  deputy-clerk  of  the  peace  ought 
not  to  have  been  received  in  evidence  to  prove  the  fmding  of  the  bill. 

7?M.wc// Serjt. ,  Manlt  and  JVatson,  shewed  cause.  The  finding  of 
the  bill  at  the  quarter  sessions  was  sufficiently  proved  by  the  minute 
book,  without  producing  a  record  of  the  caption  regularly  drawn  up. 
Such  minutes  have  frequently  been  received  in  evidence  when  it  has 
appeared  not  to  be  the  practice  of  the  court  to  draw  up  the  records 
in  form,  AV.r  v.  Ilftins,  Comb.  .3.37;  lls/icr  v.  Lone,  2  VV.  Bl.  83^. 
(Lord  TcntKrdcn  C.  J.  The  minutes  there  received  were  of  the  pro- 
ceedings of  inferior  courts,  the  court  of  rpiarter  sessions  is  a  court  of 
oyer  and  terminer,  and  is  not  a  court  of  inferior  jurisdiction.  ]  In  lira-: 
v.  Tooke^  25  St.  Tr.  446,  the  minutes  of  the  court  were  received  to 
prove  the  acquittal  of  Hardy. 

Lord  Tkntehuf.n  f'.  .1.  If  np|Kars  to  me  that  the  evidence  given 
was  not  sufficient  to  sustain  the  allegation  that  an  indictment  against 
II.  S,  was  found  at  the  quarter  ses.sluns,  which  is  a  coiM't  of  oyer  and  ter- 
miner and  a  court  of  record.  In  order  to  prove  the  fuKlingof  an  indict- 
ment, it  hns  always  been  the  practice  to  have  the  record  mrularly  drawn 
up,  and  to  pro<luce  an  ex.uninetl  copy.  If  any  other  evidence  were  al 
lowed,  I  do  not  know  how  we  could  say  that  a  conviction  or  acquittal 
might  not  also  be  proved  by  the  minutes  in  the  book  kept  by  the  clerk 
of  the  peace.  That  would  he  to  break  through  the  cslablishcd  rules 
of  evidence,  which  is  always  a  dangerous  course.  I  therefore  think  wo 
are  bound  to  say  that  the  evidence  was  not  sufficient,  and  thnt  as  to  the 

vor..  XV.  30 


234       Teague  I'.  HuuDAKD.  T.  T.  1828. 

two  clefeiulaiifs  who  were  fouml  si^iilty  llierc  iniist  lie  a  new  trial.  The 
case  of  /icj'  v.  Toukc  is  dislinguishablc  ;  for  there  the  matter  proved  by 
the  minutes  occurred  before  the  same  court  sitting  under  the  same  com- 
inisjion. 

Bayley  J.  I  am  of  llie  same  opinion.  The  caption  is  a  necessary 
part  of  the  record;  and  the  record  it.sclf,  or  an  examined  copy,  is  the 
only  legitimate  evidence  to  prove  it. 

Kule  absolute. 


Ex  parte  BAXTER.— p.  344. 

Where  a  jjarty,  committed  by  commissioners  of  bankrupt  for  not  answering  to 
their  satisfaction,  wislics  to  be  again  brought  before  them,  he  must  bear  the  ex- 
pense of  that  proceeding. 


TEAGUE  V.  HUBBARD.— p.  345. 

A  member  of  a  joint-stock  company  was  employed  by  the  company  as  their 
agent  to  sell  goods  for  them,  and  received  a  commission  of  two  i)er  cent,  for 
his  trouble,  and  one  per  cent,  del  credere  for  guaranteeing  the  purchaser. 
Having  sold  goods  on  account  of  the  company,  he  drew  on  the  purchaser  a  bill 
of  exchange,  payable  to  his  the  drawer's  own  order,  and  after  it  had  been  ac- 
ce})ted  he  indorsed  it  to  the  actuary  of  the  company,  and  the  latter  indorsed 
it  to  another  member,  who  was  the  managing  director,  and  wlio  purchased 
goods  for  the  company :  the  company  were  then  indebted  to  him  in  a  larger 
amount  than  the  sum  mentioned  in  the  bill.  The'  acceptor  having  become  in- 
solvent before  the  bill  became  due,  tlie  drawer  received  from  him  ten  shillings 
in  the  pound  upon  the  amount  of  the  bill  by  way  of  composition  :  Held,  first, 
that  the  indorsee  being  a  member  of  the  company  could  not  sue  the  drawer  on 
the  bill,  inasmuch  as  it  was  drawn  by  the  latter  on  account  of  the  company, 
and  that  he  could  not  recover  the  sum  received  by  the  drawer  on  the  bill,  be- 
cause that  money  must  be  taken  to  have  been  received  by  him  in  his  charac- 
ter of  a  member  of  the  company,  and  not  on  his  own  account. 

Declaration  by  tlie  plaintiff  as  indorsee  against  the  defendant  as 
drawer  of  two  bills  of  exchange  ;  counts  for  money  had  and  received, 
&.C.  Plea,  general  issue.  At  the  trial  before  Lord  Tenierden  C.  J.,  at 
the  London  sittings  after  Trinity  term,  1S27,  the  following  aj)peared  to 
be  the  facts  of  the  case  :  Tiie  plaintiff  was  a  shareholder  and  managing 
director  of  the  Cornish  Tin-Smelting  Company.  The  defendant  was 
a  shareholder  in  that  company,  and  also  acted  as  the  agent  of  the  com- 
pany in  the  sale  of  tin,  receiving  a  commission  of  two  per  cent,  for  ef- 
fecting sales,  and  an  additional  del  credere  commission  of  one  per  cent, 
for  guaranteeing  the  purchaser.  Having  sold  a  quantity  of  tin  on  ac- 
count of  the  company  to  one  Richard  Conness,  he,  on  the  1st  of  April 
1S26,  drew  two  bills  of  exchange  upon  Conness,  one  for  200/.,  and  the 
other  for  13.3/.  'J'he  200/.  hill  was  in  the  form  following:  "Two 
months  after  date,  ]:»ay  to  my  order  200/.,  value  received."  This  bill 
was  accepted  by  Conness,  indorsed  by  Hubbard  to  W.  Mcars,  who  was 
the  actuary  of  the  company,  and  by  the  latter  to  Teague.  The  other 
bill,  which  was  for  133/.,  was  precisely  in  the  same  form,  and  had  simi- 
lar indorsements.  The  plaititilf  iiurchascd  tin  for  the  comjjany,  and  at 
the  time  when  the  bills  were  indorsed  to  him  the  company  were  indebt- 
ed to  him  in  a  sum  exceeding  the  aggregate  amount  mentioned  in  the 
two  bills.     The  plaintiff  was  debited  in  his  account  current  with  these 


8  Bauxewall  &  Cresswell,  345.  235 

bills,  Conness  became  insolvent  before  they  became  due.  The  plaintiff 
failed  in  proving  due  notice  of  dishonour  of  the  bill  for  133/.,  but  proved 
that  the  defendant  had  received  from  Conness  ten  shillings  in  the  pound 
upon  the  amount  of  that  bill.  It  was  objected,  on  the  part  of  the  de- 
fendant, that  as  the  bill  for  200/.  was  drawn  and  indorsed  by  the  defend- 
ant on  account  of  the  company,  the  plaintiff  being  a  co-partner  could 
not  sue  upon  it  as  indorsee;  and  that  he  could  not  recover  from  the  de- 
fendant the  money  received  by  ^le  latter  on  account  of  the  bill  for 
133/.,  because  that  money  was  received  by  him  in  his  character  of  a 
member  of  the  compan)-,  and  not  in  his  individual  character.  Lord 
Tenterden  directed  the  jury  to  find  a  verdict  for  the  plaintiff  for  the 
amount  of  the  bill  for  200/.,  and  of  the  composition  received  by  the  de- 
fendant on  the  other  bill,  but  reserved  liberty  to  the  defendant  to  move 
to  enter  a  nonsuit.     A  rule  nisi  having  been  obtained  for  that  purpose, 

Campbell  and  Chitty  sliewed  cause. 

F.  Pollock  and  Follctt  contra,  cited  Pinkney  v.  Hall.,  1  Ld.  Raym. 
175;  Smith  v.Jarves,  2  Ld.  Raym.  liS4;  Lord  Galway  v.  Mathew, 
1  Camp.  403,  10  East.  26  i;  Muinw:irifig  v.  Newman,  2  Bos.  &  Pul. 
120;  Mojfatt  v.  Van  Millingefi,  2  Bos.  &:  Pul.  124.  n.;  and  Neale  v. 
Turlon,  4  Bing.  149.  ^^^^  ^^^^  ^^^^ 

The  judgment  of  the  Court  was  now  delivered  by 

Lord  Tenterden  C.  J.  This  was  an  action  against  the  defendant  as 
drawer  of  two  bills  of  exchange,  and  for  money  had  and  received.  It 
appeared  that  the  bills  were  signed  by  the  defendant,  and  indorsed  by 
him  to  Mears,  who  was  the  actuary  for  a  mining  company,  and  by  the 
latter  to  the  plaintiff.  Notice  of  the  dishonour  of  one  of  the  bills  was 
not  proved;  but  it  appeared  that  the  defendant  had  received  10^.  in  the 
pound  from  the  acceptor  on  the  other  bill,  and  for  that  sum  a  verdict 
was  taken  on  the  count  for  money  had  and  received.  It  further  appear- 
ed, that  both  the  plaintiff  and  defendant  were  members  of  the  mining 
company.  If,  therefore,  the  plaintiff  coulcl  recover  on  these  bills,  it 
would  be  a  recovery  by  one  joint  contractor  against  another,  and  then 
the  defendant  would  have  a  right  to  call  upon  the  plaintiff  for  contribu- 
tion. It  is  clear,  therefore,  that  no  action  can  be  maintained  upon  the 
bills;  but  during  the  argument,  I  thouglit  the  verdict  taken  on  the 
count  for  money  had  and  received  might  be  sustained.  Upon  further 
consideration,  however,  we  think  tliat  the  defendant  must  he  taken  to 
have  reccive(l  the  money,  not  in  his  individual  capacity,  l)ut  as  a  mem- 
ber of  the  trading  company;  anil  tiiat  being  tiie  case,  if  the  plaintiff 
were  allowed  to  recover  it  in  tliis  action  the  same  consefpience  would 
follow,  the  defendant  would  have  the  same  right  to  call  upon  the  j)lain- 
tiff  for  contribution,  as  if  the  verdict  had  been  taken  on  the  count 
framed  upon  the  bill.  For  these  reasons  we  arc  of  ojiinion  that  a  non- 
suit must  be  entered. 

jvule  absolute. 


The  KING  v.  IM  •LSFOUl).— p.  :ir>(). 

VV'ljcrc  an  t  k(  linn  tc»  an  office  in  a  r<»r|)<>r.iti<>u  was  to  l)c  made-  Ijy  a  sclfcl  body 
appoinud  by  the  cliarlcr  to  l)c  aiding  the  mayor:  Held,  that,  the  mayor  was 
not  Ijouiid  to  j;i\ c  to  the  nicinberb  of  butli  select  b<n\y  ;,i".  cific  noilct  ol"  a  meet- 


236  Rk\  v.  Pui.skoud.  T.  T.  1828. 

iiig  to  !)«.•  huUlcii  iov  the  pur[)i)so  of  such  cUctioii;  but  that  a  reasonable  aiul 
usual  notice-  rctiiiiiing  thcni  to  attend  at  a  meeting  of  the  corporation  at  a  time 
specified,  without  staling  for  wiiat  purpose  the  meeting  was  called,  was  suf- 
ficient. 

Quo  warranto  information  for  usurping  the  office  of  a  capital  burgess 
of  the  city  of  Wells.  Plea,  that  by  the  governing  charter  of  the  bo- 
rough there  are  to  be  one  mayor  and  twenty-three  burgesses,  who  shall 
be  called  the  common  council,  and  of  those  twenty-three,  seven  to  be 
called  masters  of  the  city;  and  the  common  council  are  to  be  aiding  and 
assisting  the  mayor  from  time  to  time  in  all  causes  and  matters  toiiching 
and  concerning  the  city;  and  whenever  a  vacancy  occurs  in  the  sixteen 
common  counsellors,  not  being  masters,  it  is  to  be  filled  up  by  the  other 
common  counsellors  then  surviving,  or  the  major  part  of  them,  &c. 
Averment,  that  on,  &c.  a  vacancy  happened,  and  that  defendant  vyas 
duly  nominated  and  elected  by  the  mayor  and  major  part  of  the  capital 
burgesses  there  and  then  duly  assembled  for  that  purpose,  after  due  no- 
tice in  that  behalf.  Replication,  that  due  notice  of  the  assembling  of 
the  mayor  and  capital  burgesses  for  the  purpose  of  electing  a  capital 
burgess  was  not  given.  Issue  thereon.  Many  other  issues  were  joined 
not  material  to  the  question  decided  by  this  Court.  At  the  trial  before 
Best  C.  J.  at  the  Somersetshire  Summer  assizes,  1827,  it  appeared  that 
the  following  notice  in  writing  was  given  to  each  capital  burgess  for  the 
meeting  at  which  the  defendant  was  elected: — 

"  Sir, — You  are  requested  to  attend  a  meeting  of  the  corporation  on, 
&.C.  at  o'clock. 

"  By  order  of  the  mayor, 

<<  A.  B.  town  clerk." 

The  Lord  Chief  Justice  held  that  this  notice  was  insufficient,  and  the 
election  therefore  invalid,  and  directed  a  verdict  for  the  crown.  In  Mi- 
chaelmas term  a  rule  nisi  for  a  new  trial  was  obtained;  against  which, 
on  a  former  day  in  this  term, 

Taimton,  Campbell,  C  F.  Williams,  and  Bayly,  shewed  cause, 
and  cited  Hex  v.  Hill,  4  B.&  C.  426;  Rex  v.  The  Mayor,  fyc.  of 
Shrewsbury,  Cas.  temp.  Hardw.  147;  Bex  v.  Mayor,  Src.  of  Carlisle, 
1  Sir.  3S5;  Bex  v.  Mayor  of  Liverpool,  2  Burr.  723;  Bex  v.  Mayor 
of  Doncasler,  2  Burr,  738;  Bex  v.  Thcodorick,  8  East,  543. 

B.  C.  Scarlett  and  Carter  contra,  referred  to  Bex  v.  Wake,  1  Bar- 
nard, 80.  ^,  ,  u 
'                                                                                   Lur.  adv.  vult. 

The  judgment  of  the  Court  was  now  delivered  by 

Lord  Tenterden  C  J.  The  point  on  which  this  cause  was  decided 
at  Nisi  Prius  was  the  supposed  insufficiency  of  the  notice  of  holding  the 
meeting  at  which  the  defendant  was  elected.  Now  it  appears  that  some 
days  before  the  meeting  a  notice  in  writing  signed  by  the  town  clerk, 
and  importing  that  it  was  sent  by  the  mayoi-,  was  delivered  to  each 
elector,  requiring  his  altcndancc  at  a  corporate  meeting,  on  a  certain 
day,  at  a  particular  hour,  but  not  specifying  the  purpose  for  which  the 
meeting  was  about  to  be  holden.  The  Lord  Chief  Justice  of  the  Com- 
mon Pleas  was  of  opinion  that  the  purpose  should  have  been  specified, 
and  ou  that  ground  directed  that  a  verdict  should  be  entered  for  the 
crown;  and  it  has  been  since  contended  here,  that  as  the  meeting  was 
held  for  an  election,  that  should   have   been  staled  in  the   notice.     It 


8  BaUNEVVALL  &  CliESSWELL,  350.  237 

would  be  very  difficult  to  maintain  that  the  object  of  the  meeting  must 
be  stated,  where  it  is  for  an  election,  and  not  where  it  is  for  other  pur- 
poses. Many  cases  were  cited  in  argument  as  in  point,  but,  upon  a 
review  of  them  all,  it  appears  that  there  is  not  any  one  decision  pro- 
ceeding on  the  ground  that  specific  notice  was  necessary,  although  cer- 
tainly there  are  dicta  to  that  effect,  as  well  as  to  the  contrary.  In  Bex 
V.  Hi/l  the  election  was  by  the  body  at  large,  which  is  a  very  different 
thino-.  And  even  in  that  case,  although  each  of  the  learned  Judges  ex- 
pressed an  opinion  that  the  purpose  for  which  the  meeting  was  held 
should  have  been  mentioned,  yet,  laying  that  point  entirely  out  of  con- 
sideration, the  judgment  stands  good  on  other  grounds.  The  point  ex- 
pressly decided  was,  that  the  notice  given,  as  stated  in  the  pleas,  was 
not  a  reasonable  notice,  of  which  there  could  be  no  doubt;  for,  consist- 
ently with  every  allegation  on  that  record,  the  bell  which  was  to  give 
notice  might  be  rung  for  a  few  minutes  only,  and  those  assembled 
might,  as  soon  as  it  ceased,  immediately  proceed  to  an  election,  before 
the  members  residing  at  a  distance  could  possibly  attend.  The  present 
is  the  case  of  an  election  by  a  select  body,  and  we  are  of  opinion  that 
it  was  not  necessary  in  the  notice  to  them  to  state  the  purpose  of  the 
meeting.  But  although  we  are  of  that  opinion  in  this  case,  we  avoid 
giving  any  opinion  as  to  an  election  by  a  corporate  body  at  large.  The 
difference  between  them  is  this:  the  select  body  are  appointed  to  be  aid- 
ing and  assisting  the  mayor  on  all  occasions  concerning  the  city,  when 
required  so  to  do.  It  is,  therefore,  their  duty  to  attend  whenever  the 
mayor  gives  them  reasonable  notice  that  their  attendance  is  required; 
and  we  think  they  are  not  at  liberty  to  say  that  they  abstained  from  at- 
tending because  they  did  not  know  the  specific  purpose  for  which  the 
meeting  was  about  to  be  holden.  If,  indeed,  it  had  appeared  to  be 
usual  in  this  borough  to  give  a  more  precise  notice,  the  case  would  have 
been  very  different;  but  nothing  of  that  kind  is  suggested.  For  these 
reasons,  then,  we  think  that  the  notice  was  sufficient,  and  that  there 
must  be  a  new  trial. 

Rule  absolute. 


The  KliNfi  V.  The  Commissioners  of  Sewers  for  tlic  Levels  of  PAfJ- 
HAM,  and  certain  other  Places  in  the  County  of  SUSSEX. — p.  355. 

Where  commissioners  of  sewers  acting  bona  fide  for  the  benefit  of  the  levels  for 
which  they  were  api)ointcd,  erected  certain  defences  against  the  inroads  of 
tlie  sea,  which  caused  it  to  flow  with  greater  violence  against,  and  injure  the 
adjoining  land  not  within  the  levels:  Held,  that  they  could  not  be  conn)clled 
to  make  compensation  to  the  owner  of  the  land,  or  to  erect  new  works  Jor  his 
protection;  for  that  all  owners  of  land  exposed  to  the  inroads  of  the  sea,  or 
commissioners  of  sewers  acting  for  a  mmiher  of  land-owners,  have  a  right  to 
erect  such  works  as  arc  necessary  for  their  own  protection,  even  altliough  they 
may  be  prejudicial  to  others. 

A  RULE  had  been  obtained  calling  upon  the  commissioners  to  shew 
cause  why  a  mandamus  should  not  issue,  directed  to  them,  command- 
ing them  to  issue  a  precept  to  the  sheriff  of  the  county  of  Sussex  to 
summon  a  jury  for  the  purpose  of  enquiring  what  lunt,  loss,  or  disad- 
vantage hath  been  sustaiiifd  by  VV.  Coscns  by  reason  of  certain  groynes 
md  other  works  erected  and  made  by  the  said  commissioners  within  the 


238  Rex  v,  Pegu  am.  T.  T.  1828. 

limits  ol"  the  snid  levels,  ami  of  assessing  and  ascertaining  the  com- 
pensation to  l)c  paiil  to  the  saiil  W.  Cosens  tor  the  same;  or  to  erect 
and  make  sucii  other  works  as  should  be  necessary  and  snflicient  to 
prevent  further  injury  being  done  to  the  premises  of  the  said  W.  Cosens 
by  reason  of  the  said  groynes  and  other  works  above  mentioned. 

The  rule  was  obtained  on  allidavits  which  stated  that  Cosens  was 
owner  of  certain  lands  on  the  sea  shore  of  Sussex,  abutting  on  the  west 
on  the  levels  above  mentioned;  that,  thirty  years  ago,  he  erected  a  mill 
100  yards  iVom  high  water  mark,  and  that  about  that  time  the  commis- 
sioners altered  the  groynes  and  other  works,  which  had  been  before 
erected  to  protect  the  levels  against  the  inroads  of  the  sea,  by  taking 
away  several  small  groynes,  and  erecting  one  large  groyne  in  lieu 
thereof,  at  the  easternmost  point  of  the  levels,  and  adjoining  his  (Co- 
sens's)  land.  That  the  effect  of  this  groyne  was  to  cause  the  sea  to  flow 
with  increased  force  against  his  land;  and  that  in  consequence  thereof 
his  land  had  been  gradually  washed  away  until  high  water  mark  was 
within  lifteen  yards  of  his  mill.  That  his  property  was  thereby  much 
reduced  in  value,  and  that  he  had  made  application  to  the  commissioners 
for  compensation  and  protection,   but  without  effect. 

The  affidavits  in  answer  stated  that  the  sea  was  making  encroachments 
on  the  whole  of  that  part  of  the  coast,  and  that  no  part  of  it  could  be 
secure  unless  gro3'nes  or  other  works  were  erected  for  its  protection. 
That  the  groyne  adjoining  Cosens's  land  was  essential  to  the  safety  of 
the  levels  placed  under  their  care;  that  before  it  was  erected  they  had 
endeavoured  to  ascertain  the  best  position  and  shape  for  it,  and  had 
made  it  merely  with  a  view  to  the  protection  of  the  levels,  and  not  for 
the  purpose  of  injuring  Cosens.  That  the  effect  of  every  groyne  was 
to  make  the  water  flow  with  greater  force  against  the  land  to  the  east- 
ward, but  that  if  Cosens  erected  proper  groynes  for  his  own  security 
his  property  would  not  be  injured. 

Gtcrjiei/,  T/iesiger,  and  Capron  shewed  cause,  and  contended  that 
the  commissioners  had  no  power  to  grant  compensation  to  Cosens. 

Brodrick  contra,  cited  Cardiffc  Bridge,  1  Salk.  146;  Rook's  case, 
5  ('o.  100;  Keighly'^s  case,  10  Co.  140;  Callis  on  Sewers,  104;  Rex  v. 
Severn  Railway  Company,  2  B.  &,  A.  64G;  Rex  v.  The  Vice-Chan- 
cellor  of  Cumbrii/i^e,  5  Burr.  1660. 

Lord  Tenterden  C.  J.  I  am  of  opinion  that  this  rule  must  be  dis- 
charged. At  the  time  when  the  motion  was  made  the  Court  expressed 
great  doubt  whether  it  could  be  sustained.  The  matter  has  now  been 
fully  discussed,  and  the  counsel  for  Mr.  Cosens  concluded  by  observing 
that  it  was  reduced  to  this  question,  Who  is  to  bear  the  expense  of 
erecting  the  works  necessary  to  protect  Cosens's  land?  and  I  think  he  is 
perfectly  correct  in  considering  that  as  the  substantial  question.  Let  us 
see,  then,  how  the  matter  stands.  The  commissioners  of  sewers,  for  the 
protection  of  that  land  which  it  was  their  duty  to  protect,  have  erected 
a  certain  work.  It  is  not  pretended  that  in  so  doing  tiiey  did  not  exer- 
cise, at  least,  an  honest  discretion;  and,  looking  at  the  affidavits  on  the 
one  side  and  on  the  other,  it  is  not  by  any  means  clear  that  they  did  not 
do  the  very  best  thing  that,  under  the  circumstances,  could  be  done  to  at- 
tain the  object  they  had  in  view,  liut  it  is  contended  that  this  new 
groyne  has  caused  the  sea  to  flow  with  greater  violence  against  the  land 
of  Mr.  Cosens,  and  make  a  greaU^r  inroad  upon  it,  than  possibly  it  might 
otherwise  have  done;  and  that  as  the  commissioners,  acting  for  the  bene- 


8  Baiinewall  &  Cresswell,  355.  239 

fit  of  the  level,  have  occasioned  this  damage,  they  must  make  compensa- 
tion for  it.  It  may  be  conceived  that  such  is  the  cficct  of  the  groyne; 
but  the  sea  is  a  common  enemy  to  all  proprietors  on  that  part  of  the  coast, 
and  I  cannot  see  that  the  commissioners,  acting  for  the  common  interest 
of  several  land-owners,  are,  as  to  this  question,  in  a  ditferent  situation 
from  any  individual  proprietor.  Now,  is  there  any  authority  for  saying, 
that  any  proprietor  of  land  exposed  to  the  inroads  of  the  sea,  may  not 
endeavour  to  protect  himself  by  erecting  a  groyne  or  other  reasonable 
defence,  although  it  may  render  it  necessary  for  the  owner  of  the  adjoin- 
ing land  to  do  the  like?  I  certainly  am  not  aware  of  any  authoiity  or 
principle  of  law  which  can  prevent  him  from  so  doing.  If  we  were  in 
this  instance  to  say  that  the  commissioners  for  the  level  in  question  were 
bound  to  erect  a  groyne  for  JNIr.  Cosens,  it  might,  and  probably  would, 
cause  injury  to  the  land  lying  to  the  eastward  in  the  same  manner  as  that 
erected  for  the  protection  of  the  level  has  caused  injury  to  Mr.  Cosens; 
and  the  owner  of  the  land  lying  eastward  of  Mr.  Cosens  would  have  a 
right  to  call  upon  the  commissioners  to  protect  him  also.  In  like  man- 
ner each  successive  proprietor  of  land  lying  to  the  eastward  would  be  en- 
tilled  to  claim  protection,  and  the  commissioners  might  be  compelled  to 
erect  defences  against  the  sea  along  the  whole  line  of  coast  from  the  le- 
vel of  Pagham  to  the  North  Foreland;  for  so  far,  1  believe,  the  sea  is 
making  inroads  upon  the  land.  The  extent  to  which  the  principle  must 
be  carried,  if  once  admitted,  satisfies  me  that  it  cannot  be  sustained  in 
reason  or  in  law.  I  am,  therefore,  of  opinion  that  the  only  safe  rule  to 
lay  down  is  this,  that  each  land-owner  for  himself,  or  the  commissioners 
acting  for  several  land-owners,  may  erect  such  defences  for  the  land  un- 
der their  care  as  the  necessity  of  the  case  requires,  leaving  it  to  otiiers, 
in  like  manner,  to  protect  themselves  against  the  common  enemy.  For 
these  reasons,  the  rule  for  a  mandamus  must  be  discharged. 

Haylev  J.  I  am  entirely  of  the  same  opinion.  It  seems  to  me  that 
every  land-owner  exposed  to  the  inroads  of  the  sea  has  a  right  to  protect 
himself,  and  is  justified  in  making  and  erecting  such  works  as  arc  neces- 
sary for  that  purpose;  and  the  commissioners  may  erect  such  defences  as 
are  necessary  for  the  land  entrusted  to  their  superintendence.  If,  in- 
deed, they  made  unnecessary  or  improper  works,  not  with  a  view  to  the 
protection  of  the  level,  but  with  a  malevolent  intention,  to  injure  t!ie 
owner  of  other  lands,  Ihey  would  be  amenable  to  piniishment  by  criminal 
information  or  indictment,  for  an  abuse  of  the  powers  vested  in  them. 
But  if  they  act  bon;i  fide,  (Icing  no  more  than  they  honestly  think  neces- 
sary for  the  protection  of  the  level,  their  acts  are  jiisli(ial)le,  and  those 
uho  sustain  damage  therefrom  must  protect  themselves.  It  has  been  ar- 
gued that  Mr.  Cosens,  having  sustained  damage  from  the  groyne  erected 
by  the  commissioners,  is  entitleil  to  compensation.  I  do  not  agree  to 
that  as  an  abstract  proposition.  If  a  man  sustains  damage  by  the  wrong- 
ful act  of  another,  he  is  entitled  to  a  remedy;  but  to  give  him  that  title 
those  two  things  must  concur,  damage  to  himscit",  and  a  wrong  rommitted 
by  the  other.  That  he  has  sustained  damage  is  not  of  itself  sulllcient. 
Now  here  Mr.  Cosens  may  have  sustained  damage,  but  the  commis- 
sioners have  done  no  wrong.  The  dictum  of  Mr.  Justice  W'iJmot  was 
cited  to  shew  that  where  there  is  a  right  this  Court  ought  to  find  a  reme- 
dy. Hut  the  right  that  Mr.  Cosens  and  each  land-owner  has,  is  to  pro- 
tect himself;  not  to  be  protected  by  his  neighbours.  To  that  right  no  in- 
jury has  been  done,  nor  can  any  wrongful  act  be  charged  against  the  com- 


2i0  Uex  v.  Guf.kt.  T.  T.  1828. 

missioncrs  ;  \\\c  I'ourl,  th(>reforo,  have  no  grounils  lor  granting  llic  nian- 
ilanuis  applied  for. 

IIui.Kovi)  and  Littlepale  Js.  concurred. 

Rule  discharged. 


The  KING  V.  GREET.— p.  363. 

Information  for  usurping  tlic  office  of  jurat  of  the  borough  of  Q.  Plea,  that  the 
borough  of  Q.  was  a  free  borough,  and  tliat  the  burgesses  of  the  borough  were 
a  body  corporate,  consisting  of  the  mayor,  bailiffs,  and  burgesses  of  the  borough, 
and  that  by  cliarter  it  was  granted  tliat  the  mayor,  bailiffs,  and  burgesses,  by 
whatever  name  they  had  before  been  incorporated,  should  thereafter  be  a  body 
corporate  by  ihe  name  of  "  mayor,  jurats,  bailiffs,  and  burgesses;"  that  there 
should  be  one  of  the  more  honest  and  discreet  burgesses  or  inhabitants  called 
"  mayor,"  to  be  elected  as  tlicrcin  mentioned;  and  four  honest  and  discreet  bur- 
gesses or  inhabitants  called  "jurats;"  and  two  other  honest  and  discreet  burgesses 
or  inhabitants  called  "bailiffs;"  that  the  jurats  and  bailiffs  should  hold  their  of- 
fices for  life,  unless  removed  for  reasonal)le  cause;  and  whenever  it  should  hap- 
pen that  cither  or  any  of  the  jurats  or  bailiffs  for  the  time  being  should  die,  or 
be  removed  or  withdrawn  from  his  or  their  office  or  offices,  it  should  be  lawful 
for  the  surviving  and  remaining  jurats  and  bailiffs  for  the  time  being,  or  the 
greater  part  of  them  (of  whom  the  mayor  should  be  one),  within  convenient 
time,  to  nominate  another  or  others  of  the  burgesses  or  inhabitants  of  the  bor- 
ough for  the  timcl)eing  tobe  a  jurat  or  jurats,  bailiff  or  bailiffs,  of  the  borough. 
The  plea  tlien  stated  a  vacancy  in  the  office  of  jurat,  and  that  the  defendant, 
being  an  inhabitant  of  the  borough,  was  duly  elected  to  be  a  jurat.  Replication, 
first,  putting  in  issue  the  due  election  of  the  defendant ;  and  secondly,  that  from 
the  time  of  granting  the  charter,  hitherto  it  had  been  used  and  accustomed 
within  the  borough,  that  every  inhabitant  of  the  borough  elected  to  be  a  jurat, 
before  he  took  ujjon  himself  the  office  of  jurat,  should  be  sworn  and  admitted  a 
free  burgess  of  the  borough,  and  that  the  defendant,  before  he  took  upon  him- 
self the  office  of  jurat,  had  not  l)ecn  admitted  and  s\vorn  a  burgess.  Demurrer. 
Upon  the  trial  of  the  issues,  in  fact,  it  appeared  that,  at  the  election  of  the 
defendant,  there  were  present  the  mayor,  two  bailiffs,  and  two  jurats:  Held, 
that  the  election  was  valid,  for  the  general  rule,  that  a  majority  of  each  definite 
part  of  the  elective  body  should  be  present  at  the  election,  could  not  apply  to 
this  coi-poration,  because  in  the  event  of  the  death  or  removal  of  one  of  the 
bailiffs,  it  would  be  impossible  that  at  the  election  of  a  new  bailiff  there  should 
be  present  a  majority  of  the  bailiffs. 

Held,  upon  demurrer  to  the  re])lication,  that  according  to  the  true  construction 
of  t]\e  charter,  it  was  competent  to  the  corporation  to  elect  the  jurats  from  the 
inhabitants  of  the  liorough  or  from  the  burgesses,  and,  therefore,  that  the  plea 
was  good,  inasmuch  as  it  shewed  that  the  defendant  was  an  inhabitant  of  the 
borough  at  the  time  he  was  elected  to  tlie  office  of  jurat. 


The  KING  V.  The  Justices  of  the  County  of  BUCKINGHAM.— p.  375. 

An  indictment  had  been  preferred  against  a  county  for  not  repairing  a  bridge, 
at  the  instance  of  tlie  inhabitants  of  a  parish,  and  the  question  intended  to  be 
tried  was,  whether  the  inhabitants  of  the  ])arish  or  of  the  county  were  liable  to 
repair  iti*  The  Court  refused  to  compel  the  inhabitants  of  the  parish  to  allow 
tlie  parties  indicted  to  inspect  the  parish  books  and  documents  relating  to  the 
repair  of  the  bridge. 

A  UULE  nisi  had  been  obtained  for  liberty  for  the  defendants  to  in- 
spect, and  take  extracts  from,  the  books,  papers,  minutes,  and  proceed- 
ings of  the  prosecutors,  as  bridge-wardens  and  trustees  of  Marlovv  Bridge, 
and  all  other  documents  of  them  the  bridge-wardens  relating  to  the  said 


8  Barnewall  &  Cresswell,  375.  241 

bridge.  Tliis  rule  was  founded  on  an  affidavit  of  the  clerk  of  the  peace 
for  (he  county  of  Buckingham,  which  stated  the  following  facts:  In 
Trinity  term  an  information  against  the  defendants,  for  not  repairing 
Great  Marlow  Bridge,  was  obtained  at  the  instance  of  the  bridge-wardens 
and  trustees  of  certain  lands  in  the  parish  of  Great  JSIarlow,  the  annual 
rents  whereof  were  applicable  to  the  repairing  of  Marlow  Bridge;  and 
in  order  to  make  a  good  defence  to  the  information,  it  was  necessary  to 
inspect  the  books  of  account,  and  of  minutes  of  the  proceedings  of  the 
bridge-wardens;  and  also  to  inspect  all  other  papers  and  documents 
touching  or  concerning  the  receipt  of  the  rents,  and  the  management  o£ 
the  estates  held  by  them  the  bridge-wardens  for  the  purposes  aforesaid; 
and  also  the  accounts  of  the  disbursements  of  such  rents.  The  clerk  of 
the  peace  had  made  application  to  the  bridge-wardens'  solicitor  for  in- 
spection, but  permission  to  inspect  was  refused.  He  found  in  his  office 
of  clerk  of  the  peace,  among  the  records  of  the  county,  a  statement  of  a 
case,  with  the  opinion  of  counsel  thereon,  which  statement  appeared  to 
have  been  made  with  the  consent  of  the  bridge-wardens,  inasmuch  as  it 
contained  copious  extracts  from  their  book,  called  the  Bridge  Book;  and 
from  such  statement  it  also  appeared  that  the  said  bridge-wardens  and 
trustees  had  been  from  time  to  time  elected  by,  and  their  accounts  sub- 
mitted to,  and  allowed  by,  the  inhabitants  of  Great  Marlow  in  vestry 
assembled. 

Giirney  and  Bayly  shewed  cause,  and  cited  The.  Mayor  of  South- 
ampton V.  Graves,  8  T.  R.  590;  Cox  v.  Copping,  Ld.  Raym.  337; 
The  Queen  v.  Mead,  Ld.  Raym.  927;  Rex  v.  Holland,  4  T.  R.  691. 

Maltby  contra,  referred  to  Harrison  v.  Williams,  1  B,  &  C.  262; 
Pickeriuf;  v.  Noyrs,  3  B.  &  C.  162;  Allan  v.  Tap,  2  Blac.  Rep.  850; 
Browning  v.  Aylivin,  7  B.  &  C.  204. 

Lord  Tenterden  C.  J.  The  question  at  the  trial  of  the  information 
in  this  case  will  be,  Whether  the  inhabitants  of  the  county  or  the  in- 
habitants of  the  parish  of  Great  Marlow  are  liable  to  repair  the  bridge? 
The  defendants  will  say  that  the  inhabitants  of  the  parish  arc  liable. 
The  question  therefore,  will  be  the  same  as  if  the  inhabitants  of  the 
parish  had  been  indicted.  Now  it  is  clearly  established  by  the  authori- 
ties, that  if  the  application  were  made  on  behalf  of  the  prosecutor  in  an 
indictment  against  the  parish  to  inspect  the  books  of  the  latter,  the  Court 
would  not  compel  (he  latter  to  furnish  evidence  to  make  a  case  against 
themsefvcs;  and  as  the  efl'ect  of  granting  the  application  in  a  case  like 
the  present  may  be  to  compel  the  parish  to  furnish  evidence  which  may 
hereafter  be  used  against  (hem  on  an  indicltnent  preferred  against  them, 
I  think  we  ought  not  (considering  this  as  a  contest  between  the  county 
and  the  parish)  to  compel  (lie  parish  to  produce  the  documents  in  ques- 
tion: and  if  we  ought  not  to  compel  the  inhabitants  of  the  parish  to  jiro- 
duce  these  documents,  ought  we  to  compel  the  bridge-wardens  wlio  are 
trustees  for  the  parish?  It  has  been  said  that  it  may  be  a  question  whether 
ihe  bridge-wardens  are  trustees  for  the  county  or  for  the  parish.  Upon  the 
aflidavils  there  is  every  reason  to  suppose  that  they  arc  trustees  for  the 
parish.  They  are  identified  with  the  jiarish.  They  are  elected  by,  and 
their  accounts  are  submitted  to,  (he  parishioners  in  vestry  assembled. 
As  we  could  not  compel  (he  parish  to  [irodiicc  evidence  against  them- 
selves, I  think  we  ought  not  to  compel  the  bridge-wardens  to  do  so, 
lhf\v  appearing  (o  be  trustees  for  the  parisli. 

BAvr.Kr  J       In  order  to  entitle  a  parly  to  inspect  hook^,  they   must 

vol..   XV  31 


242  FiuTH  V.  Thrush.  T.  T.  1828. 

either  be  public  books,  or  the  party  who  applies  for  such  inspection 
must  have  an  interest  in  them.  In  the  case  of  corporation  books,  no 
person  wholly  unconnected  with  the  corporation  has  a  right  to  inspect 
them.  This  is  a  public  prosecution,  and  the  application  is  made  on  be- 
half of  the  defendants.  If  all  the  subjects  of  the  realm  have  an  interest 
in  the  books  and  documents,  the  application  ought  to  be  granted.  But 
these  books  are  kept  not  for  the  benefit  of  all  the  subjects  of  the  realm, 
or  even  of  the  inhabitants  of  the  county  of  Buckingham,  but  for  the  bene- 
lit  and  on  the  behalf  of  the  inhabitants  of  the  parish  of  Great  Marlovv, 
They  are,  properly  speaking,  not  public  but  parochial  books.  This, 
therefore,  is  an  application  by  one  litigant  party  to  compel  the  other  to 
produce  his  own  private  books  to  make  out  a  case  against  him.  This  is 
indeed  a  proceeding  against  those  who  apply  for  the  inspection,  but  if 
they  obtain  inspection  of  the  parish  books,  they  may  hereafter  institute 
a  criminal  proceeding  against  the  parish  of  (ireat  Marlow,  and  use  the 
extracts  from  their  own  private  books  as  evidence  against  them. 
HoLROYD  and  Littledale  Js.  concurred. 

Rule  discharged. 


The  KING  v.  The  Justices  of  WILTS.— p.  380. 

The  17  G.  2.  c.  38.  s.  4,  does  not  make  it  imperative  on  the  justices  to  hear  and 
determine  an  appeal  at  the  sessions  next  following  the  publication  of  the  rate, 
but  they  may  adjourn  it  to  the  next  sessions.  Where  a  rate  was  published  on  the 
16th  September,  and  the  appeal  was  entered  at  the  Michaelmas  sessions,  but 
the  defendant  did  not  give  notice  of  his  intention  to  try  his  appeal  at  those  ses- 
sions, and  the  justices  adjourned  it  as  a  matter  of  course  to  the  Epiphany  ses- 
sions, according  to  the  usual  practice,  and  the  appellant  gave  notice  of  his  inten- 
tion to  try  his  appeal  at  the  Epiphany  sessions,  wlien  the  justices  refused  to 
hear  it,  on  the  ground  that  it  ought  to  have  been  heard  and  determined  at  the 
preceding  sessions,  this  Court  granted  a  mandamus  to  compel  them  to  hear  the 
appeal. 


HAY  WARD  and  Others  v.  WRIGHT.— p.  38G. 

Where  a  cause  has  been  sent  back  by  procedendo  to  an  inferior  court,  this  Court 
will  not  quash  the  writ  on  the  ground  tliat  the  cause  is  important,  and  fit  to  be 
tried  in  the  superior  court. 


FIRTH  V.  THRUSH.— p.  387. 

The  indorsee  of  a  bill  of  exchange,  dishonoured  by  the  acceptor,  being  ignorant 
of  the  place  of  residence  of  one  of  the  indorsers,  employed  an  attorney  to  give 
notice  to  him  and  the  other  prior  indorsers  ;  the  attorney,  after  inquiry,  having 
received  information  of  this  indorser's  place  of  residence  on  the  following  day, 
consulted  liis  client,  and  on  the  tliird  day  sent  notice  of  the  dishonour  of  the 
bill :  Held,  that  the  notice  was  sufficient. 

The  declaration  averred  that  tlie  defendant  had  notice  of  the  dishonour:  Held, 
that  allegation  was  satisfied  by  proof,  that  he  had  notice  as  soon  as  it  could  rea- 
sonably be  given,  and  that  it  was  unnecessary,  therefore,  to  state  in  the  decla- 
ration the  special  circumstances  which  rendered  valid  the  notice  given  at  a 
later  period  than  in  ordinary  cases  v/ould  be  sufficient. 

Declaration  by  the  plaintiff,  as  indorsee,  against  the  defendant  as 
indorser  of  a  bill  of  exchange.      The  declaration  was  in  the  usual  form, 


S  Baunewall  ik  Cresswell,  387.  243 

and  alleged  non-payment  of  the  bill  by  the  acceptor,  of  which  the  de- 
fendant had  notice.  Plea,  general  issue.  At  the  trial  before  Lord  Ten- 
ttrden  C.  .T.,  at  the  London  sittings  after  last  Michaelmas  term,  it  ap- 
peared that  the  action  was  brought  to  recover  the  amount  of  the  following 
bill  of  exchange: 

''Frome,  October  1st,  1825. 
"  Ten  months  after  date  pay  to  my  order  two  hundred  and  fifty 
pounds,  for  value  received. 

"Mr.  S.  Greenland,  Clothier,  **  Richard  Major. 

*<  Frome." 

The  bill  was  accepted,  payable  at  Sir  Peter  Pole's  banking-house  in 
London,  was  indorsed  by  Major  to  the  defendant,  by  the  latter  again  in- 
dorsed to  Major,  and  by  Major  to  Swain  and  Co.,  of  London,  and  by 
them  to  the  present  plaintiff.  Major,  thcdrawer  of  the  bill,  resided  in 
Somersetshire,  and  was  the  i)rolher-in-law  of  the  defendant,  and  by  the 
authority  of  the  laltcr,  had  put  his  name  on  the  bill.  Before  the  bill  be- 
came due,  the  plaintiff  had  ajiplied  to  Swain  and  Co.  for  information 
respecting  the  defendant,  but  tliey  could  give  him  no  information.  He, 
as  well  as  Swain  and  Co.,  repeatedly  applied  to  Major,  and  also  to  Mil- 
ler, his  attorney  (who  acted  in  this  suit  as  the  attorney  for  tiie  defend- 
ant). They  returned  for  answer,  that  the  plaintiff  must  not  expect  to 
get  any  thing  from  Thrush,  and  they  gave  no  information  respecting  his 
place  of  residence.  The  bill  was  dishonoured  by  Greenland,  the  ac- 
ceptor, on  the  4lh  August  1S26,  the  day  it  became  due.  The  plaintiff 
then  delivered  the  bill  to  Pownal,  his  attorney,  and  directed  him  to  give 
notice  to  the  parties  on  the  bill,  and  due  noiice  of  such  dishonour  was 
given  to  Swain  and  Co.,  and  to  Major;  and  on  the  5th  of  August  a  let- 
ter containing  notice  of  the  dishonour  of  the  bill  was  put  into  the  post- 
office  in  London,  addressed  to  the  defendant  at  Frome.  He  in  fact  did 
not  reside  at  Frome,  but  at  Burton,  which  is  ten  miles  from  Frome,  and 
never  received  the  letter,  and  it  was  returned  through  the  post-office  to 
the  plaintiff,  on  the  21th  Sejjtcmber.  He  then  directed  Pownal  to  use 
the  utmost  diligence  to  ascertain  the  place  of  residence  of  tlie  defendant, 
and  tlic  latter  wrote  to  a  jjrofcssional  man  at  Frome  to  use  his  endea- 
vours for  the  same  ])urpose;  and,  on  the  Ifith  October,  he,  Pownal,  re- 
ceived information,  by  loiter,  that  the  defondant  resided  at  Burton.  On 
the  17lh  October,  Pownal  consulted  his  client  upon  the  subject,  and  on 
the  18th  wrote  a  letter  to  the  defendant,  giving  him  notice  of  the  dis- 
honour. Upon  these  facts  it  was  contended,  by  the  defendant's  counsel, 
that  tlic  plaintiff  ought  to  be  nonsuited,  because,  admitting  that,  under 
the  parlifular  circumstances  of  this  casf,  the  plaintiff  was  excused  from 
giving  notice  of  the  dishonour  of  the  bill  on  the  5th  day  of  August,  the 
time  when  he  otherwise  ought  to  have  ffiven  it,  the  evidence  did  not 
prove  the  allrgalion  in  the  declaration,  that  the  defendant  had  notice: 
and,  secondly,  that  the  notice  actually  given  was  not  valid;  for  admit- 
ting that  the  facts  proved  shewed  that  tlin  plaintiff  had  used  due  diligence 
to  ascertain  the  place  of  residence  of  ti)e  defenelant  in  the  first  instance, 
still  the  plaintiff's  attorney  having  acquired  knowledge  of  the  defen- 
dant's residence  on  the  Kith  October,  ought  to  have  given  notice  on  the 
I7lh:  whereas  he  neglected  to  do  so  until  the  IStli.  l^ord  Tcntrrtfcn 
was  inclined  to  be  of  opinion  that  as  Major  was  the  agent  of  Thruf<h  for 
the  purpose  of  indorsing  the  bill,  he  might  be  con>ideied  hi;i  agent  fur 


244  FiRTii  V.  TiiKi'sn.  T.  T.  1828. 

the  purpose  of  receiving  notice,  and,  therefore,  that  notice  to  Major  was 
notice  to  Tlirush;  hut  even  if  that  was  not  so,  that  under  tlie  peculiar 
circumstances  of  this  case,  the  notice  on  the  ISth  was  suflicie;it;  and  as 
to  the  other  point,  he  was  of  opinion  that  if  the  evidence  shewed  tliatthe 
defendant  had  notice  as  soon  as  it  was  required  by  law,  the  averment 
\vas  proved;  but  reserved  the  points,  and  directed  the  jury  to  find  a  ver- 
dict for  the  plaintiff  lor  the  amount  of  the  bill,  with  liberty  to  the  de- 
fendant to  move  to  enter  a  nonsuit.  A  rule  nisi  for  that  purpose  having 
been  obtained  in  last  term, 

Sir  J.  Scarlett  and  Barnewall  now  slicwed  cause. 

Brougham  and  Chitty  contra,  cited  Cory  v.  Scott,  3  B.  &  A.  619. 

Lord  Tenteuden  C.  J.  I  cannot  entertain  any  doubt  that  the  alle- 
gation in  the  declaration,  that  the  defendant  had  notice  of  the  dishonour 
of  the  bill,  was  fully  proved,,by  shewing  that  he  had  a  notice  good  and 
available  in  law.  It  was  quite  unnecessary  to  state  on  the  record  the 
special  circumstances  or  facts  which  rendered  the  notice  valid,  although 
it  was  given  at  a  later  period  than  would  in  ordinary  cases  have  sufficed. 
Then  all  difficulty  as  to  the  form  of  the  declaration  being  removed, 
the  only  remaining  question  is.  Whether  the  notice  of  dishonour  was 
good  and  valid.  It  struck  me  at  the  trial,  that  as  Major  was  the  agent 
of  the  defendant  for  the  purpose  of  indorsing  the  bill,  he  was  also 
his  agent  for  the  purpose  of  receiving  notice  of  dishonour,  and  that 
notice  having  been  given  to  him  in  due  time,  that  was  notice  to 
the  defendant.  1  still  incline  to  be  of  that  opinion.  But  it  is  un- 
necessary to  decide  the  case  upon  that  ground.  I  would  rather  de- 
cide it  on  more  general  principles.  For  a  month  or  more  there  was 
no  knowledge  of  the  defendant's  abode.  It  was  clear  that  the  holder 
of  the  bill  was  not  guilty  of  any  laches  before  the  24th  of  Sep- 
tember. He  had  made  enquiries  of  Major  and  of  his  attorney  as  to 
the  defendant's  residence,  and  they  would  not  give  him  any  informa- 
tion. The  plaintiff  sent  notice  of  dishonour  to  Frome,  which  was  the 
place  where  the  bill  purported  to  have  been  drawn.  That  letter  was  re- 
turned to  Pownal  on  the  24th  of  September,  and  he  thereupon  wrote  to 
an  attorney  at  Poole,  and  requested  him  to  ascertain  the  place  of  resi- 
dence of  the  defendant.  On  the  IGth  of  October  he  received  information 
of  the  defendant's  residence.  If  he  had  written  to  the  defendant  on  the 
17th,  there  would  not  have  been  any  doubt  that  the  notice  would  have 
been  sufficient;  but  he  did  not  write  till  the  IStli:  the  question  is.  Whe- 
ther he  was  entitled  to  take  a  day  to  consult  his  client.''  Pownal  was 
not  the  holder,  he  was  the  agent  and  attorney  of  the  plaintiff,  employed 
by  the  latter  to  give  notice  of  the  dishonour.  If  Pownal,  the  agent  of 
the  plaintiff  for  the  purpose  of  giving  notice  of  dishonour,  had  a  right 
to  take  a  day  to  consult  his  client  under  the  special  circumstances  of  the 
case,  the  notice  was  sufficient.  I  think  he  had.  If  the  letter  had  been 
sent  to  the  principal,  he  would  have  been  bound  to  give  notice  on  the 
next  day;  but  it  having  l)een  sent  to  the  agent,  he  was  not  bound  to  give 
notice  on  the  following  day.  A  banker  who  holds  a  bill  for  a  customer, 
is  not  bound  to  give  notice  of  di:?honour  on  the  day  on  which  the  bill  is 
dishonoured.  He  has  another  day;  and  upon  the  same  principle  I  think 
the  attorney  in  this  case  was  entitled  by  law  to  be  allowed  a  day  to  con- 
sult his  client.     This  rule  must,  therefore,  be  discharged. 

Baylef  J.      I  am  of  the  same  opinion.     The  allegation  that  the  dc- 


8  Barnewall  &  CuESSWELL,  387.  245 

fendant  had  notice  was  proved  by  showing  tliat  he  had  notice  as  soon 
as  it  could  reasonably  be  given.  The  duty  of  the  holder  of  a  bill  is  to 
use  due  diligence  to  discover  the  residence  of  parties  entitled  to  notice. 
Here  the  holder  attempted  before  the  bill  became  due  to  ascertain  from 
the  drawer  the  place  of  the  defendant's  residence,  and  the  drawer  would 
not  give  the  information.  It  was  unnecessary  when  the  bill  became  due 
to  renew  the  same  attempt,  and  the  plaintiff  sent  notice  to  the  place 
where  he  might  reasonably  suppose  the  defendant  to  reside.  On  the 
16th  of  October  Pownal  received  notice  that  the  defendant  resided  at 
Burton.  Pownal  was  entitled  to  go  to  his  client  and  consult  him.  He 
has  one  day  for  that  purpose,  and  goes  on  the  17th  of  October.  Pownal 
had  the  same  period  of  time  as  the  party  himself.  There  is  a  class  of 
cases  analogous  to  this:  I  mean  those  cases  where  bills  are  deposited  in 
the  hands  of  a  banker  for  the  benefit  of  a  customer.  The  banker  has  a 
day  to  give  notice  to  his  customer.  If  the  holder  of  a  bill  place  it  in 
the  hands  of  his  banker,  the  latter  is  only  bound  to  give  notice  of  its 
dishonour  to  his  customer  in  like  manner  as  if  he  were  himself  tlie  holder, 
and  his  customer  must  send  to  the  party  next  entitled  to  notice;  and  the 
customer  has  the  like  time  to  communicate  such  notice  as  if  he  had  re- 
ceived it  from  a  holder  (a). 

HoLROYD  J.  The  law  requires  reasonable  notice.  The  facts  proved 
in  this  case  show  that  reasonable  notice  was  given.  This  is  exactly  like 
the  case  of  a  bill  deposited  by  a  customer  with  his  banker.  If  the  bill 
in  question  had  been  deposited  by  the  plaintiff  with  his  banker,  and  dis- 
lionoured  on  the  16lh,  it  would  have  been  sufficient  for  the  banker  to 
have  given  the  plaintiff  notice  on  the  17th,  and  for  the  plaintiff  to  have 
given  notice  to  the  defendant  on  the  18th.  I  am,  therefore,  of  opinion 
that  the  notice  given  in  this  case  was  sufficient.  I  think  also  that  the 
form  of  declaration  is  proper,  and  that  the  allegation  that  the  defendant 
had  notice,  was  satisfied  by  proof  that  he  had  that  reasonable  notice 
which  the  law  requires. 

LiTTLEDALE  J.  I  think  that  the  notice  was  sufficient,  for  the  rea- 
sons already  given  by  the  rest  of  the  Court.  I  also  think  that  the  aver- 
ment in  the  declaration  was  proved.  In  Balcmdn  v.  Joseph^  2  Camji. 
461,  12  East,  133,  which  was  an  action  by  the  indorsee  against  the 
payee  and  fust  indorscr  of  a  bill  of  exchange,  it  appeared  that  the  plain- 
tiff received  notice  of  the  dishonour  on  the  30lh  of  September,  in  time 
to  have  given  notice  on  that  day;  he  gave  no  notice  till  thcllh  of  Octo- 
ber, byt  his  clerk  proved  that  he  did  not  know  the  defendant's  residence 
till  that  day.  Lord  Ellcnhorougli  there  said  '*  the  holder  must  not 
allow  himself  to  remain  iti  a  state  of  passive  and  contented  ignorance; 
hut  if  he  uses  reasonable  diligence  to  discover  tiie  residence  of  the  in- 
dorscr, I  conceive  tiiat  notice  given  as  soon  as  this  is  discovered,  is  due 
notice  of  the  dishonour  of  the  bill  witliin  the  usage  and  nistoni  of  mer- 
chants." Anrl  he  left  it  to  the  jury  to  find  for  the  jjlaiiiliff  if  they  thought 
lie  had  used  due  diligence  to  discover  the  residence  of  the  indorscr.  In 
this  case  there  can  be  no  doubt  that  due  diligence  was  used  in  that  re- 
spect. If  the  notice  under  the  peculiar  circumstances  of  the  case,  was 
a  valid  notice  at  the  time  it  was  given,  the  allegation  is  salisficfl  by  the 
proof.  I  do  not  recollect  to  have  ever  seen  tlic  special  rircumstanccs 
which  excuse  the  want  of  notice  at  the  time  when  it  is  usually  required 

(a)  Sec  fffn/nm  v.  fltrH/i,  .1  Bos.  ^  Tul.  A99.  Sco((  v.  l.ifford,  9  East,  347. 
I.aitgiale  V.  Trimmer,  15  EaJ^t, -91. 


246  Faiiilie  v.  Denton.  T.  T.  1828. 

staled  iti  a  ilccIanUion.  Tlic  Icpjal  cflect  of  such  special  circumstances 
is  to  make  a  notice  on  the  ISth  of  October  a  good  and  valid  notice.  It 
is  sullicient  in  jjleading  to  state  tlie  legal  efl'cct.  The  rule  for  entering 
a  nonsuit  must,  therefore,  be  discharged. 

Rule  discharged  («). 

(a)  Sec  Baldivin  v.  Richardson,  1  B.  &  C.  245. 


FAIRLIE  V.  DENTON  and  BARKER.— p.  395. 

The  general  rule  of  law  is,  that  a  debt  cannot  be  assigned.  The  exception  to 
that  rule  is,  that  where  there  is  a  defined  and  ascertained  debt  due  from  A.  to 
Vt.  and  a  debt  to  tlie  same  or  a  larger  amount  due  from  C.  to  A.,  and  the  thicc 
agree  that  C.  sliall  be  li.'s  debtor  instead  of  A.,  and  C.  promises  to  pay  B-,  the 
latter  may  maintain  an  action  against  C.  But  in  such  action,  it  is  incumbent 
on  the  plaintiff  to  show,  that  at  the  time  when  C.  promised  to  pay  B.  there  was 
an  ascertained  debt  due  from  A.  to  B. 

Assumpsit  for  money  had  and  received.  Plea,  non  assumpsit.  At 
the  trial  before  Lord  Tenterden  C.  J.,  at  the  London  sittings  after 
Hilary  term  1828,  the  following  appeared  to  be  the  facts  of  the  case.  By 
articles  of  agreement,  the  defendants  and  one  E.  Perry  agreed  to  grant 
a  piece  of  land  therein  described,  unto  S.  Crossland  and  J.  Stonehouse^ 
who  agreed  to  build  on  tlie  same  land  twelve  brick  messuages  or  dwell- 
ing-houses. The  defendants  and  Perry  agreed  to  purchase  from  Cross- 
land  and  Stonehouse  a  yearly  rent  charge  of  96/.  to  be  charged  upon  the- 
said  messuages,  at  and  for  the  sum  of  1200/.,  which  said  sum  of  1200/. 
was  to  be  paid  to  Crossland  and  Stonehouse,  or  to  their  order  in  writing, 
by  six  instalments,  at  specified  stages  in  the  progress  of  the  buildings. 
The  5th  instalment  was  ISO/.,  and  was  to  be  paid  as  soon  as  the  plaster- 
ers' work  should  be  finished.  The  6th  and  last  instalment  was  240/., 
and  was  to  become  due  when  each  of  the  twelve  messuages  should  be 
painted,  papered,  and  coloured,  iron  rails  and  iron  work  fixed,  and  in  all 
respects  completely  fit  for  the  reception  of  a  tenant. 

The  defendants  from  time  to  time  made  payments  on  account  of  the 
1200/.  to  Crossland  and  Stonehouse,  and  the  latter  at  different  times  gave 
to  the  plaintiff  eight  orders  in  writing  on  the  defendants,  for  several  sums 
of  money,  amounting  in  the  aggregate  to  499/.  10*.  The  defendants  paid 
the  sums  mentioned  in  the  first  live  orders  only.  Crossland  being  called 
as  a  witness,  stated,  that  he  kept  a  book  in  which  he  entered  all  monies 
received  by  him  of  the  defendants,  and  he  entered  as  cash  payments 
made  by  them,  the  amount  of  the  several  orders  given  by  him  and  Stone- 
house in  favour  of  the  plaintiff;  and  he  further  stated,  that  the  defendants 
kept  a  book,  in  which  there  were  entries  corresponding  in  all  respects 
with  his  own,  the  two  accounts  having  been  frequently  checked  and 
compared  with  each  other.  The  defendants'  book  having  been  pro- 
duced, it  a])peared  that  they  had  charged  Crossland  and  Stonehouse,  on 
account  of  the  orders  given  to  the  plaintiff,  with  such  sums  only  as  they 
had  actually  paid  the  plaintiff.  Crossland  further  stated,  that  after  all 
these  orders  had  been  given,  and  the  first  five  had  been  paid,  he  on  the 
5th  of  February  applied  to  the  defendants  for  a  further  advance.  At  that 
time  the  defendants  had  advanced  to  Crossland  and  Stonehouse,  includ- 
ing the  sums  paid  in  pursuance  of  their  orders  to  the  plaintiff,  872/., 


8  Barnewall  &  Ckesswell,  395.  247 

and  the  plaintiff  had  lodged  in  the  defendants'  hands  orders  of  Crossland 
and  Stonehouse  to  the  amount  of  233/.  They  refused  to  advance  Cross- 
land  and  Stonehouse  any  further  sum,  alleging  as  a  reason  for  their  re- 
fusal that  there  was  upwards  of  200/.  due  to  the  plaintiff  on  the  orders 
lodged  with  them,  for  which  they,  the  defendants,  were  responsible. 
The  plaintiff  gave  no  evidence  to  shew  that  at  the  time  when  this  con- 
versation took  place,  the  buildings  were  in  such  a  slate  of  forwardness 
as  to  entitle  Crossland  and  Stonehouse  to  a  larger  sum  than  that  which 
had  already  been  advanced  to  them  by  the  defendants;  and  it  afterwards 
appeared  in  the  course  of  the  defendants'  evidence,  that  the  buildings 
were  not  only  not  completed  on  the  5th  of  February,  but  it  was  at  least 
doubtful  whether  the  plasterers'  work  had  been  done  so  as  to  entitle 
Crossland  and  Stonehouse  to  the  fifth  instalment.  The  defendants  after- 
wards paid  to  Crossland  and  Stonehouse  the  further  sum  of  95/.,  which, 
together  with  the  sums  paid  by  them,  and  the  sum  of  233/.,  which  the 
plaintiff  claimed  to  be  paid  to  them  in  pursuance  of  their  orders,  would 
make  up  the  full  sum  of  1200/.  which  was  to  become  due  to  Crossland 
and  Stonehouse  when  the  buildings  should  be  completed. 

Upon  these  facts,  it  was  contended,  on  the  part  of  the  defendants, 
that  the  plaintiff  could  not  recover,  because  he  claimed  as  assignee  of  a 
debt  which  by  law  could  not  be  assigned.  If  by  an  agreement  between 
the  three  parties,  the  plaintiff  had  undertaken  to  look  to  the  defendants 
and  not  to  his  original  debtors,  that  would  have  been  binding,  and  the 
plaintiff  might  have  maintained  an  action  on  the  agreement;  but  in  order 
to  give  him  that  right  of  action,  there  ought  to  have  been  an  extinguish- 
ment of  the  original"  debt,  which  would  have  been  a  good  consideration 
for  the  defendants'  promise.  IV/iarton  v.  Walker,  4  B.  &  C.  163. 
Here  the  plaintiff  never  agreed  to  discharge  or  release  the  debt  owing 
to  him  by  Crossland  and  Stonehouse,  and  lie  may  sue  them  at  any  time. 
Secondly,  assuming  that  the  original  deijt  was  extinguished,  this  action 
for  money  had  and  received  is  not  maintainable,  because  the  defendants 
never  in  fact  received  any  money  on  account  of  the  plaintiff.  Lord 
Tenterden  directed  the  jury  to  find  a  verdict  for  the  plaintiff,  if  from 
the  evidence  they  thought  that  the  defendants  had  ever  acknowledged 
that  they  held  in  their  hands  money  for  the  plaintifi";  but  he  reserved 
liberty  to  *he  defendants  to  move  to  enter  a  nonsuit,  if  the  verdict 
should  be  against  tlitnn.  A  verdict  having  been  found  for  the  plaintiff, 
a  rule  iiisiiov  entering  a  nonsuit  was  obtained  by  Sir  Jumcs  Scarlett  it) 
last  Easier  term. 

F.  Pollock  and  R.  V.  Riclianh  now  shewed  cause.  They  referred 
to  Sprat t  V.  Ilohkoiisc  and  Others,  4  Bingh.  173;  Cuxon  v.  Chadley^ 
3  B.  &  C.  591;  IVharton  v.  Walker,  4  B.  &  C.  103;  Hudirsnn  v.  ./?;j. 
demon,  3  B.  &  C.  842. 

SirJ!,  Scarlett  and  Comyn,  contra,  were  stop])ed  by  the  Court. 

Lord  Tkntkruen  C.  J.  It  is  a  general  rule  of  law,  that  a  chose  in 
action  cannot  be  assigned,  'i'hcrc;  is,  howeviT,  an  exception  to  that 
rule.  It  has  been  held  that  where  it  has  been  adniilled  and  agreed  be- 
yond dispute  that  a  defined  and  ascertained  sum  is  due  from  A.  lo  B  , 
and  that  a  larger  sum  is  due  from  C.  to  A.,  and  the  Ihiee  agree  that  C. 
shall  be  B. 's  debtor,  instead  of  A.,  and  C.  promises  to  pay  B.  the 
amount  owing  to  him  by  A.,  an  action  will  lie  by  B.  against  ('.  Here, 
at  the  time  when  the  defendants  were  supposed  to  have  admitted  that 
they  were  responsible  to  the  plaintiff,  there  was  not  any  defined  and  asccr- 


248  Biutis  V.  Fem.ovvs.  T.  T.  1828. 

taincil  sum  due  ironi  them  to  Crossland  and  Stonehouse.  Crossland  tlicn 
asked  llic  dolV'iidants  for  a  fiirtliLT  advance,  which  Ihey  refused,  hecause 
lliey  held  orders  in  favour  of  the  plaintilf  for  payment  of  more  than 
200/.  ]}ut  non  constat  that  that  sum  was  then  due  from  them  to  Cross- 
land  and  Stonehouse.  It  nu<2;ht  afterwards  liavc  heen  to  hecome  due 
in  tlie  progress  of  the  work,  which  was  not  at  that  time  completed.  It 
lay  upon  the  ])laintifl',  in  order  to  hring  himself  within  the  cases  which 
form  exceptions  to  the  general  rule,  to  shew  that  at  the  time  when  the 
defendants  are  supposed  to  have  proinised  to  pay  him  the  debt  owing  to 
him  by  Crossland  and  Stonehouse,  there  was  a  debt  ascertained  to  be 
due  to  th^m  from  the  defendants.  Not  having  done  so,  he  has  not 
brought  himself  witliin  the  exception  to  the  general  rule,  and,  there- 
fore,  the  rule  for  a  nonsuit  must  be  made  absolute. 

Rule  absolute. 


BIGGS  and  Others,  Assignees  of  COLLIER,  a  Bankrupt,  v.  FEL- 
LOWS, surviving  Partner  of  TATLOCK.— p.  402. 

Ii)  Avigust  1821,  A.,  a  trader,  being  indebted  to  B.  and  C,  then  in  partnership, 
but  about  to  separate,  gave  a  warrant  of  attorney  to  secure  payment  by  instal- 
ments to  B.  alone,  who  knew  that  A.  was  then  insolvent.  In  October,  A. 
committed  an  act  of  bankruptcy;  and  in  November,  at  B.'s  desire,  he  sent 
goods  to  the  wareliouse  of  B.  and  C.  as  a  further  security  for  the  debt.  In 
December,  B.  and  C.  dissolved  partnership,  and  the  former  afterwards  re- 
ceived from  A.  several  sums  of  money  on  account  of  the  warrant  of  attorney, 
and  also  sold  the  goods,  towards  satisfaction  of  the  debt.  A  commission  of 
bankrupt  issued  against  A.  in  January  1823,  and  in  November  of  that  year  B. 
died  ;  Held,  that  A.'s  assignees  might  recover  from  C.  the  money  paid  by  A. 
on  the  warrant  of  attorney  by  an  action  for  money  had  and  received,  and  the 
value  of  the  goods  by  an  action  of  trover. 

Assumpsit  for  money  had  and  received  by  the  defendant  and  Tatlock 
in  his  life-time,  to  the  use  of  the  plaintiffs  as  assignees  of  Collier.  Plea, 
the  general  issue.  At  the  trial  before  Lord  Tenterden  C.  J.  at  the 
J-.ondon  sittings  after  Michaelmas  term  1827,  it  appeared  that  in  Mav 
1821,  the  bankrupt  dishonoured  a  bill  for  321/.  which  he  had  accepted 
for  the  accommodation  of  Whltton  and  Co.,  and  which  they  had  in- 
dorsed to  the  defendant  and  Tatlock,  who  then  carried  on  business  in 
copartnership.  Tatlock  pressed  Collier  for  payment,  and  not  being 
able  to  obtain  it,  demanded  security,  and  on  the  4th  of  August  1821, 
Collier  consented  to  give  a  warrant  of  attorney  to  secure  payment  by 
if. Raiments;  and  this  security  was  given  to  Tatlock  alone,  because  at 
that  time  a  dissolution  of  the  partnership  between  him  and  the  defend- 
ant was  contemplated,  and  which  was  carried  into  effect  on  the  1st  of 
.fanuary  1822.  The  terms  of  the  dissolution  were  not  proved.  In 
October  1821,  Collier  committed  an  act  of  bankruptcy.  This  was  not 
known  to  the  defendant  or  Tatlock;  but  the  latter  at  that  time  knew 
Collier  was  insolvent,  and  finding  him  not  punctual  in  paying  the  in- 
stalments as  they  became  due  on  the  warrant  of  attorney,  demanded 
further  security;  and  in  November  1821,  Collier  sent  goods  to  a  consi- 
derable amount  to  the  warehouse  of  Fellows  and  Tatlock,  which  re- 
mained there  at  the  time  of  the  dissolution  of  partnership  betweea  them. 
In  February  and  March  1822,  Tatlock  received  from  Collier,  on  ac- 
eountof  the  debt   secured   by  the  warrant  of  attorney,    110/.,  and,  in 


8  Barnewall  &  Cresswell,  402.  249 

Michaelmas  term  1S22,  he  entered  up  judgment,  and  issued  a  fieri  facias 
thereon,  against  Collier's  goods,  under  which  he  received  a  further  sum 
of  441.  A  commission  of  bankrupt  issued  against  Collier  on  the  7th 
January  1S23,  under  which  the  plaintifls  were  chosen  assignees,  Tat- 
lock  died  in  November  1S23.  For  the  defendant  it  was  contended,  that 
these  payments  being  received  by  Tatlock  under  the  warrant  of  attorney 
which  was  given  to  him  alone,  were  not  payments  to  the  defendant, 
and  that  the  action  should  have  been  brought,  not  against  him,  but 
against  the  personal  representative  of  Tatlock.  Lord  Tenterden 
thought  the  plaintifls  were  entitled  to  recover  the  two  sums  of  110/. 
and  44/.,  and  directed  the  jury  to  find  a  verdict  accordingly,  but  gave 
the  defendant  leave  to  move  to  enter  a  nonsuit.  A  rule  nisi  for  that 
purpose  was  obtained  in  Hilary  term,  against  which, 

Sir  J.  Scarlett  and  Richards  shewed  cause. 

Denmun  and  Alderson,  contra,  cited  Kilgour  v.  Finlyson  and 
Others,  1  H.  Bl.  155. 

Lord  Tenterden  C.  J.  I  am  of  opinion  that  this  rule  must  be  dis- 
charged. It  appeared  in  evidence  at  the  trial,  that  Collier  was  indebted 
to  Tatlock  and  the  defendant,  on  a  bill  of  exchange  which  he  was  un- 
able to  pay  when  it  became  due.  He  was  then  informed  of  an  intend- 
ed dissolution  of  partnership  between  the  defendant  and  Tatlock,  and 
upon  the  application  of  the  latter,  who  appears  to  have  managed  the 
concerns,  a  warrant  of  attorney  was  given  to  him  alone  in  August  1S21. 
The  partnership,  however,  was  not  dissolved  until  the  last  day  of  that 
year,  and  if  an  action  had  been  commenced  by  both  partners  to  recover 
the  debt  immediately  after  the  warrant  of  attorney  was  given,  there 
can  be  no  doubt  that  they  might  have  recovered.  In  the  month  of  Octo- 
ber, Collier  committed  an  act  of  bankruptcy;  after  that,  and  after  the 
dissolution  of  partnership,  the  money  in  question  was  paid  to  Tatlock. 
The  terms  upon  which  the  dissolution  took  place  were  not  in  evidence, 
but  if  they  contained  any  stipulation  that  could  have  had  the  eflcct  of 
exonerating  the  defendant  from  his  liabilit)^,  that  should  have  been 
shewn  by  him.  In  the  absence  of  any  such  proof,  I  ihink  that  pay- 
ment to  one  was  in  law  payment  to  ijoth,  and  that  the  money  received 
after  the  act  of  bankruptcy  may  be  recovered  from  the  defendant. 

Bayley  J.  The  money  was  paid  in  respect  of  a  debt  duo  to  thri 
partnership;  both  the  jiartncrs  were,  therefore,  prima  facie  liable  to 
refund  it  to  the  assignees  of  the  bankrupt.  If  there  had  been  a  bargain 
between  Tatlock  and  the  defendant,  which  made  it  the  receipt  of  'i'ai- 
lock  alone,  that  should  have  been  proved  by  the  defendant.  The  war- 
rant of  attorney  was  not,  of  itself,  sulficient  to  make  that  out  in  the 
absence  of  any  evidence  ihat  Tatlork  was  to  retain  thr  money  to  \\\» 
own  use. 

Iloi.uoYi)  J.     A  judgment  taken  by  one  of  two  joint  creditors,  does 

not  extinguish  the  debt,   unless  if  be  clearly  taken  witli  the  concurrcnco 

of  both.     The  debt,  therefore,   in  the  present  case,  remained  due  to 

the  defendant  jointly   with  'I'nllock,    notwithstanrling  tlv  warrant  of 

attorney. 

LrrTr.KnAl.E  J.    coii^nrred.  i>    i      i-     i  i 

Jtnle  discharged. 

There  was  also  an  action  of  trover  between  the  same  parties,  brought 
to  recover  the  value  of  the  goods  deposited  by  Collier  with  'I'atlockand 
the  tiefcndant,  as  mentioned  in  the  former  case,  and  sold  by  Tatlock 
after  the  dissolution  of  partnership.     In  this  case  also,  a  rule  for  eu- 

VOL.    XV,  .)\i 


250  Kdmonus  v.  Lowe.  T.  T.  1828. 

trring  a  nonsuit  had  l)een  granted,   and,  alter  the  former  case  had  been 
disposed  of, 

Deivnan  was  called  upon  to  support  his  rule:  and  he  contended  that 
the  sale  by  Tatlock,  after  the  dissolution,  was  a  wrongful  act,  for  which 
he  alone  and  not  the  defendant  was  responsible. 

Lord  Tentekden  C.  J.  The  goods  were  originally  deposited  with 
Tatlock  and  the  defendant,  and  they  continued  to  be  identified  with  re- 
sj)ect  to  those  goods  from  that  time  down  to  the  time  of  the  sale.  The 
plaintiffs,   therefore,  are  entitled  to  retain  the  verdict. 

Rule  discharged. 


EDMONDS  V.   LOWE.— p.  407. 

In  an  action  by  the  indorsee  against  the  drawer  of  a  bill,  it  appeared  by  the 
jjlaintiff' s  case  that  he  had  received  it  from  the  acceptor  in  dischars^e  of  a  debt 
clue  from  him.  For  the  defendant,  it  was  stated  that  the  bill  was  accepted  in 
discharge  of  part  of  a  debt  due  fi'om  the  acceptor  to  the  drawer;  that  it  was 
indorsed  and  delivered  to  the  acceptor,  in  order  that  he  might  get  it  discount- 
ed, and  that  he  delivered  it  to  the  plaintiff,  upon  condition,  that  if. he  pro- 
cured cash  for  it,  he  might  retain  out  of  it  the  amount  of  the  debt  due  to  him 
from  the  acceptor,  but  that  he  never  did  get  cash  for  the  bill :  Held,  that  the 
acceptor  could  not  be  examined  to  prove  these  facts;  for  although  he  was  unin- 
terested as  to  the  amount  sought  to  be  recovered  on  the  bill,  he  was  interested 
as  to  the  costs  against  which  he  would  have  to  indemnify  the  defendant,  if  the 
plaintiff  obtained  a  verdict. 

Assumpsit  by  the  indorsee  of  a  bill  of  exchange  for  198/.,  drawn  by 
the  defendant  upon  one  Benzeville,  and  accepted  by  him,  and  indorsed 
by  the  defendant.  Plea,  the  general  issue.  At  the  trial  before  Lord 
Ttnterden  C.  J.,  at  the  London  sittings,  after  last  Michaelmas  term, 
the  plaintiff  proved  the  acceptance,  indorsement,  and  dishonour  of  the 
bill.  On  cross  examination  of  his  witness  it  appeared  that  he  before 
held  a  check  for  70/.,  drawn  by  Benzeville,  which  had  been  dishon- 
oured, and  that  Benzeville  brought  the  bill  in  question,  and  asked  the 
plaintiff  to  exchange  drafts  with  him,  which  was  done.  For  the  de- 
fendant it  was  stated,  that  Benzeville  being  indebted  to  the  defendant 
in  the  sum  of  350/.,  the  bill  in  question  was  accepted  by  him  for  a  part 
of  that  debt,  and  he  offered  to  get  it  discounted.  In  order  that  he  might 
do  so,  the  defendant  indorsed  the  bill,  and  delivered  it  to  Benzeville, 
who  carried  it  to  the  plaintiff  (a  bill  broker),  and  told  him,  that  the  de- 
fendant wanted  cash  for  it,  and  that  if  he  would  procure  cash  for  it,  he 
might  retain  out  of  the  proceeds  70/.,  which  Benzeville  owed  him.  The 
plaintiff  took  the  bill  upon  those  terms,  but  never  got  it  discounted, 
and  never  gave  any  value  for  it.  Benzeville  was  called  as  a  witness  to 
prove  these  facts,  but  was  objected  to  on  the  ground  of  interest,  and  re- 
jected, whereupon  the  plaintiff  obtained  a  verdict.  In  Hilary  term  a 
rule  nisi  for  a  new  trial  was  obtained;  and  now 

S\t  J.  Scarlett  and  Patleson  shewed  cause.  Benzeville  was  inter- 
ested in  the  event  of  the  cause.  The  plaintiff  was,  according  to  his  own 
case,  entitled  to  recover  70/.  on  the  bill;  as  to  that  sum  the  acceptor 
was,  perhaps,  indifferent,  but  if  the  plaintiff  recovered,  he  would  be 
liable  over  to  the  defendant,  not  only  for  the  amount  of  the  verdict,  but 


8  Bahnevvall  &  Cresswell,  407.  251 

for  the  costs  also,   whereas,  if  the  defendant  succeeded,  he  (Benzeville) 
would  only  be  liable  to  the  plaintiff  for  the  70/. 

Denman  and  Chitty  contra.  Benzeville,  in  his  negotiation  with  the 
plaintiff  for  the  discount  of  this  bill,  acted  as  agent  for  the  defendant. 
Now  the  servants  of  tradesmen  who  deliver  goods,  and  other  agents 
who  alone  have  knowledge  of  the  transactions  in  dispute,  are  constantly 
admitted  to  give  evidence  ex  necessitate,  although,  strictly  speaking, 
they  are  interested  in  the  result  of  the  action. 

Lord  Tenterden  C.  J.  I  am  of  opinion  that  the  testimony  of  Benze- 
ville was  properly  rejected.  It  appeared  by  the  statement  of  the  de- 
fendant's counsel  that  Benzeville  was  answerable  for  the  payment  of  the 
hill  by  himself,  and  there  was  an  implied  undertaking  by  him  to  indem- 
nify Lowe.  He  was,  therefore,  interested  in  the  result  of  the  action, 
inasmuch  as  the  costs,  if  the  plaintiff  succeeded,  would  ultimately  fall 
upon  himself  But  it  has  been  argued,  that  he  was  excepted  out  of  the 
general  rule  by  reason  of  his  employment  as  agent  for  Lowe;  that, 
liowever,  applies  only  to  agents  employed  in  the  ordinary  transactions 
of  commerce,  then  they  are,  ex  necessitate,  excepted  out  of  the  rule, 
and  admitted  to  give  evidence,  but  here  Benzeville's  only  connexion 
with  or  agency  for  Lowe,  arose  out  of  the  transaction  in  question;  he 
was  not,   therefore,   competent  to  give  evidence. 

The  rule   for  a  new  trial  was  ultimately  made  absolute,  upon 
reading  certain  affidavits  put  in  by  the  defendant. 


Ex  parte  GREGORY.— p.  409. 

Balguy  moved  for  leave  to  enter  up  judgment  on  an  old  warrant  of 
attorney,  given  as  a  collateral  security,  together  with  a  mortgage.  The 
affidavit  on  which  the  motion  was  founded  was  entitled  "In  the  King's 
Bench,"  but  not  in  any  cause. 

Per  Curiam.  As  there  is  not,  in  fact,  any  cause  in  court,  the  title 
of  the  affidavit  is  sulficient. 

^lotion  granted. 


COLEctUx.   V.   ROBERT  EAGLE  and  Others.— p.  10!). 

Tlic  8tat.  8  H.  fi.  c.  9.  s.  6.,  which  gives  treble  damajjcs  to  the  party  grievci!, 
by  a  forcilile  entry  atid  cxijiilsion,  a])plies  only  to  persons  having  the  freehold, 
for  the  remedy  is  givf  n  against  tlie  disseisor. 

'1'kf.spass  for  breaking  and  entering  the  dwelling  house  of  the  wife 
lUnn  sola,  and  cxj)clling  her  therefrom.  The  hrst  count  wa.s  framed  on 
the  Stat.  S  H.  6.  c.  9.,  and  stated  that  the  wife  *'  was  po.sscsscd  of  the 
dwelling  house,  as  tenant  thereof  to  T.  K.  Eagle,  for  so  long  a  timens 
ihey  should  respectively  please,"  that  derondanls,  with  a  strong  hntid, 
entered  the  house,  and  expelled  her.  'I'hcre  were  other  counts  in  tres- 
])ass  in  the  ordinary  form.  The  dcfcndanls  pleaded  the  goiierai  issue. 
At  the  trial  a  verdict  was  found  for  the  |)Iaintins,  with  .O/.  damages,  and 
judgment  was  entered  up  generally  fur  that  sum  and  treble  costs,  which 
were  allowed  by  the  Master  on  the  ground  that  the  jjlaintiffs  were  ci'ii- 


4J)i 


Rex  v.  Sutton.  T.  T.  182S. 


tied  to  them  iMider  the  S  H.  G.  c.  9.   s.  (}.     A  rule  nisi  for  a  review  of 
t!ie  iSIa.skM\s  taxation  having  been  ohtained, 

/'.  Kvlly  shewed  cause.  liy  the  stat.  8  II.  G.  c.  9.  s.  G.  it  was  enact- 
ed, that  a  person  put  out,  or  disseised  of  any  lands  in  a  forcible  man- 
ner, may  have  assise  of  novel  disseisin,  or  a  writ  of  trespass,  and  if  the 
party  recover,  he  shall  have  treble  damages  against  the  defendant.  Hero 
then  the  j^iaintifls  were  entitled  to  treble  damages,  and,  consequently, 
to  treble  costs,  FilfoUrs  case,  10  Co.  IIG.  It  is  true  that  judgment 
has  been  entered  up  for  single  damages  only,  and  the  plainlifi's  may  bo 
considered  as  having  waived  the  treble  damages,  but  that  does  not  de- 
prive them  of  their  right  to  treble  costs. 

jyightman  contra.  The  first  count  only  was  framed  upon  the  statute, 
and  the  damages  were  taken  generally  upon  the  whole  declaration.  The 
plaintiffs,  therefore,  had  no  right  to  enter  up  judgment  for  treble  da- 
mages, and,  consequently,  had  no  right  to  more  tiian  single  costs;  for 
they  can  only  have  treble  costs  as  incident  to  treble  damages.  But, 
supposing  that  not  to  be  a  sufficient  answer,  the  statute  8  H.  6.  does  not 
apply  to  this  case,  the  wife  was  at  most  only  tenant  from  year  to  year, 
and  the  statute  applies  only  to  parties  forcibly  dispossessed  of  a  freehold. 
The  words  in  s.  G.  are,  that  "  the  party  grieved  shall  have  assise  of 
novel  disseisin,  or  a  writ  of  trespass  against  such  disseisor."  He  was 
then  stopped  by  the  Court. 

Lord  Tekterden  C.  J.  I  think  it  is  quite  plain  that  the  statute  was 
intended  to  apply  to  those  only  who  have  the  freehold.  A  disseisor  is 
one  who  takes  the  freehold:  and  this  is  easily  accounted  for;  at  the  time 
when  the  statute  in  question  was  passed  no  tenants  at  will  or  from  year 
to  year  were  known. 

iiAYLEY  J.  The  case  of  Eex  v.  Dormy,  1  Ld.  Raym.  610,  shews 
that  a  party  is  not  witiiin  the  statute,    unless  he  has  the  freehold. 

Rule  absolute  {a). 

(a)  See  Fitz.  N.  B.  560.  8th  edit.  Dalaber  v.  J.yster,  2  Dyer,  142.  Jnomj- 
Hious,  Say.  68.  pi.  141.  JiiOfiymous,  1  \i:ntr.  306.  .'i  Bulstr.  71.  Rex  v.  Ifan- 
vo/i^  Say.  142. 


MAGRAVE  V.  WHITE.— p.  412. 

Where  the  speaker  of  tlic  House  of  Commons  "certified  that  a  certain  sum  was 
due  to  A.  B. ,  "a  witness  summoned  by  and  on  behalf  of  C.  D.,  one  of  the 
sitting;  meml)ers  for  Dublin,  to  i^ive  evidence  before  an  election  committee," 
the  Court  ordered  judi^mcnt  lo  be  entered  up  against  C.  1).  for  that  sum  as 
n])on  a  warrant  of  attorney,  the  certificate  being  held  conclusive  as  to  the  fact 
of  the  witness  having  been  summoned,  and  the  stat.  5i  (?.  3.  c.  71.  being  held 
applicable  to  witnesses  summoned  by  a  sitting  member,  as  well  as  to  those 
summoned  by  a  petitioner. 


The  KING  V.  SUTTON  and  Others.— p.  417. 

.Micnegp  is  a  ground  of  challenge  to  a  juror;  and  if  the  party  has  an  opportunity 
of  making  his  challenge,  and  neglects  it,  lie  cannot  afterwards  make  the  ob- 
iertion.  Semble,  That  since  the  V  fi.  4.  c.  ^0,  s.  27.  alienage  is  not  a  ground 
even  of  challenge  to  a  special  jnror. 


8  Barnewall  &  Chess  WELL,  417.       253 

Indictment  for  a  conspiracy.  Plea,  not  guilty.  At  the  trial  before 
Lord  Tenterden  C.  J.,  at  the  London  sittings  after  last  Hilary  term, 
Sutton,  and  some  other  defendants,  were  found  guilty,  others  were  acquit- 
ted.   The  parties  convicted  being  now  brought  up  for  Judgment, 

Denman,  on  behalf  of  Sutton,  moved  for  a  new  trial,  on  an  affidavit 
that  a  special  juror,  who  served  on  the  trial,  was  an  alien,  and  that  this 
fact  was  not  known  to  the  defendant  until  after  the  trial.  The  6  G.  4. 
c.  50. ,  for  consolidating  and  amending  the  laws  relating  to  jurors  and 
juries,  in  the  first  section  enacts,  that  every  man  (except  as  thereinaf- 
ter excepted)  being  the  owner  or  occupier  of  certain  descriptions  of 
property  there  specified,  shall  be  qualified  and  liable  to  serve  on  juries. 
In  s-  2.  there  are  certain  exemptions  fron^  this  liability,  and  s.  3.  is  ex- 
pressly applicable  to  this  case:  ''Provided  also,  that  no  man,  not  being 
a  natural  born  subject  of  the  king,  is  or  shall  be  qualified  to  serve  on 
juries  or  inquests,  except  only  in  the  cases  hereinafter  expressly  provid- 
ed for;"  which  exception  applies  to  juries  de  medietate.  Tlie  subse- 
quent provisions  as  to  special  juries  do  not  introduce  any  new  descrip- 
tion of  persons  as  qualified  to  servjc,  but  relate  only  to  the  mode  of  se- 
lecting special  jurors  out  of  the  general  description  before  given.  [^Bay- 
ley  J.  What  is  the  consequence  if  a  person  not  entitled  to  do  so,  serves 
as  a  juryman  ?]  The  decision  of  the  jury  is  void,  and  a  new  trial  must 
be  granted,  Bex  v.  Tremearne^  5  B.  &:  C.  354. 

The,  Solicitor-General,  (with  whom  was  Bosanquet  Serjt. )  contra. 
The  word  qualified  is  applied  to  aliens  in  the  third  section,  in  the  same 
sense  in  which  it  is  applied  to  other  jiersons  in  the  first  section.  Now 
by  the  twenty-seventh  section  it  is  enacted,  "That  if  any  man  shall  be 
returned  as  a  juror  for  the  trial  of  any  issue  in  any  of  the  courts  here- 
inbefore mentioned,  who  shall  not  be  qualified  according  to  this  act,  the 
want  of  such  qualification  shall  be  good  cause  of  challenge;"  and  the 
section  concludes  with  a  proviso  "  that  nothing  therein  contained  shall 
extend  in  any  wise  to  any  special  juror."  (lie  was  then  stopped  by  the 
Court.) 

Lord  Tentekden  C.  J.  The  enactment  in  the  27th  section  of  this 
statute  agrees  precisely  with  that  which  had  before  been  established  by 
the  common  law,  for  in  Co.  Lit.  156  b.  it  is  stated  that  aliens  born  may 
be  challenged  jjropter  defectum  patriae.  Now,  I  am  not  aware  that  a 
new  trial  has  ever  been  granted  on  the  ground  that  a  juror  was  liable 
to  be  challenged,  if  the  party  had  an  opportunity  of  making  his  chal- 
lenge. In  the  case  cited,  no  such  opportunity  had  been  nflbrdcd.  We 
ought  to  be  very  carcfid  in  giving  way  to  such  an  application,  for  if  wo 
must  grant  a  new  trial  at  the  instance  of  a  defendunt  after  conviction, 
wc  must,  also,  do  it  at  the  instance  of  a  prosecutor,  when  there  has  been 
an  acquittal;  and  it  seems  to  mc  that,  without  a  precedent,  wo  ought 
not  to  intcrlcre  in  this  late  stage  of  the  proceedings.  Tlu'  proviso  also, 
at  the  end  of  the  iiTlh  section,  appears  to  have  the  ellcct  of  taking  away 
even  this  right  of  challenge  in  the  case  of  a  special  juror;  proi)al)ly  be- 
cause the  party  has  had  an  earlier  opportunity  of  making  the  objection. 

Rule  refused. 


The  KING  V.  RICIL\RI)S  and  Others.— p.  420. 

Tlic  Stat.  7  (».  4.  c.  7\.  s.  2'?.,  wliicli  provifl<'s  fnr  llir  allowance  of  costs  to  prn-^ 
sccutors  and  witnesses  in  r.crtain  cases  nf  niisdenjcanor,  does  not  apply  where 
the  indictment  han  been  removed  into  K.  H.  hv  (.ertioiviii. 


254  MuuuAY  V.  Uekyes.  T.  T.  1828. 


MOSES  V.  RICHARDSON.— p.  421. 

The  ilcfciulaiit,  who  was  a  married  woman  at  the  time  when  this  ac- 
tion was  hrought,  heing  sued  as  a  feme  sole,  had  suffered  judgment  to 
go  by  default,  and  had  been  taken  in  execution. 

%^rchbold  now  moved  to  discharge  her  out  of  custody,  on  the  ground 
that  she  was  a  married  woman. 

Lord  Tknterpkn  C.  J.  The  defendant  ought  not  to  have  suffered 
the  plaintiff  to  incur  the  expense  of  executing  a  writ  of  enquiry.  She 
must  be  left  to  her  writ  of  error. 

Rule  refused. 


MURRAY  V.  REEVES,  Gent.,  one,  &c.— p.  421. 

A.,  an  insolvent,  having  petitioned  the  court  for  the  relief  of  insolvent  debtors  to 
l)e  discharged  out  of  custody;  and  having  been  Ijrought  uj)  before  that  court  to 
be  examined,  was  opposed  by  B.  a  creditor,  and  remanded  to  a  future  day. 
Before  that  day  arrived,  C,  who  acted  as  the  attorney  of  A.,  in  consideration 
of  B  's  withdrawing  his  opposition  to  A.'s  discharge,  undertook  that  B.  should. 
be  the  sole  assignee  of  A.'s  estate,  and  should  receive  100/.  out  of  it  within 
three  weeks  from  his  appointment:  Held,  that  this  agreement  was  contrary 
to  the  policy  of  the  insolvent  act,  and  therefore  void. 

Assumpsit  for  the  breach   of  an   agreement.      Plea,    non-assumpsit. 
At  the  trial  before  Lord  Tenlerden  C.  J.,  at  the  Middlesex  sittings  af- 
ter Michaelmas  term  1S27,  the  following  appeared  to  be  the  facts  of  the 
case:  The  plaintiff  had  recovered  judgment  against  Alexander  Shearer 
for  268G/.     The   latter  being  detained   in   execution  at  the  suit  of  the 
plaintiff,  petitioned  the  court  for  the  relief  of  insolvent  debtors  to   be 
discharged  out  of  custody.     He  was  brought  up  for  that  purpose  on  the 
21st  of  July,  but   was  opposed  by  the  plaintiff,  and   by  his  consent,  it 
was  referred  to  an  officer  of  the  court  to  examine  the  insolvent,  and  to 
make  a  report  to  tlie  court.     The  insolvent  w^as  remanded  on  the  21st 
of  July.     Before  that  day  the  following  agreement  (for  the  breach  of 
wliicii   the   present  action   was   brought)  was  entered  into  between  the 
plaintiff  and   the   defendant,   the   latter  then   acting  as  the  attorney  of 
Shearer.      <'  On  condition  of  Mr.  Murray  withdrawing  his  opposition, 
Mr.  Reeves  will  undertake  to  consent  that  Mr.  Murray  shall  be  sole  as- 
signee of  Mr.  Shearer's  estate  and  effects;  and  to  guarantee  that  Mr.  Mur- 
ray as  assignee,  shall  receive  90/.  or  100/.  outof  the  insolvent'sestate  with- 
in three  weeks  from  his  appointment  as  assignee,  he  taking  the  necessary 
steps   which   Mr.  Reeves   will   point  out  to  him;  and  also  to  guarantee 
40/.  in  lieu  of  the  furniture  and  effects  which  the  assignee  is  entitled  to 
as  vesting  in  the  insolvent  in  rigiit  of  his  wife,  who  is  now  in  Paris." 
On   the   part  of  the  defendant,  it  was  contended,  that  this  agreement 
was  contrary  to  the  policy  of  the  law,  and  Nerot  v.  Wallace,  3  T.  R. 
17,  was   cited,  where  a  promise  having   been  made  by  the  defendant, 
a  friend  of  a  bankrupt,  when  he  was  on   his  last  examination,  that  in 
consideration  that  the  assignees  and  commissioners  would  forbear  to  ex- 
amine the  bankrupt  concerning  certain  sums  of  money  with  which   he 
was  charged,  he,  defendant,  would  pay  those  sums;  the  court  held  that 
ihe  consideration  was  void,  it  being  contrary  to  the  policy  of  the  bank- 
rupt laws.     Lord  Tenlerden  C.  J.    \vas  inclined  to  think  that  the  con- 
tract between  Murray   and  Reeves  was  illegal,,   but  he  reserved   the 


8  Barnewall  &  CuEsswELL,  421.  255 

point,  and  a  verdict  was  found  for  the  plaintiff  for  10.5/.,  with  liberty  to 
the  defendant  to  move  to  enter  a  nonsuit.  A  rule  nisi  having  been 
obtained  for  that  purpose, 

Campbell  and  fVi/bo7'n  on  a  former  day  in  this  term  shewed  cause, 
citing  Aero/  v.   IVallace,  3  T.  K.  17;  Kayne  v.  Bolton,  6  T.  R.  134. 
Sir  J.  Scarlett  and  Hutchinson  contra. 

Lord  Tenterden  C,  J.  now  delivered  the  judgment  of  the  Court. 
This  was  an  action  on  an  agreement,  whereby  the  defendant,  in  con- 
sideration of  the  plaintiff's  withdrawing  his  opposition  to  one  Shearer, 
who  had  applied  for  his  discharge  under  the  act  lor  the  relief  of  insolvent 
debtors,  undertook,  among  other  things,  to  consent  that  the  plaintiff 
should  be  the  sole  assignee  of  the  estate  of  Shearer,  to  guarantee  that 
the  plaintifl'  should,  as  assignee,  receive  a  sum  of  90/.  or  100/.  out  of  the 
insolvent's  estate  within  three  weeks  fi'om  his  appointment  as  assignee, 
he  taking  the  steps  that  the  defendant  should  point  out  to  him,  and  also 
to  guarantee  a  sum  of  40/.  in  lieu  of  the  furniture  and   efl'ccts  to  which 
the  assignee  might  become  entitled  as  vesting  in  the  insolvent  in  right 
of  his  wife.      And  the  action  was  brought  in  respect  of  these  two  sums 
of  money.     At  the  trial,  it  appeared  that  Shearer  had,  in  fact,  been  under 
examination  as  to  his  schedule,  which  is  the  usual  practice  of  the  Court 
in  cases  of  opposition.     And  on  the  part  of  the  defendant,  it  was  insist- 
ed,  that  this  engagement  being  made  in  consideration  of  withdrawing  a 
creditor's  opposition  to  the  discharge  of  an  insolvent  debtor,  was  void  in 
law.      And  we  are  of  that  opinion.     It  is  obvious  that  a  measure  of 
this  kind  takes  from  the  commissioners  that  superintendance,  controul, 
and  power  of  imprisonment  for  a  time,  which  the  legislature  intended  to 
vest  in  them,  and,  consequently,  deprives  the  other  creditors  of  the 
benefit  of  that  full  disclosure,  voluntarily  and  freely  to  be  made,  which 
they  are- entitled  to  have.      Such  bargaining,  whatever  may  have  been 
intended   or  effected  in  the   particular  case,   may,  in  many  cases,  give 
protection  to  a  fraudulent  concealment,  to  the  great  prejudice  of  creditors, 
and  is,  therefore,  in  our  opinion,   contrary  to  the  jiolicy  of  this  part  of 
the  law,  and  conscf[uently  void.     It  was  urged,  that  a  creditor  may  law- 
fully make    such  a  bargain  as  the  present,    because    he    may  at  any 
time  consent  to  the  discliargc  of  the  debtor,  even  after  he  shall  have 
been  committed  or  remanded  by  the  commissioners  for  a  certain  time. 
It  may  be  true  that  a  creditor  may  so  consent,  but  if  the  debtor  obtains 
his  discharge,  in  that  manner,  his  relief  under  the  statute,  as  to  the  debts 
of  other  creditors,  will,  in  many  cases,  be  rendered  riucstionable;  and 
if  the  imprisonment  be  under  the  seventeenth  section,  for  fraudulent  con- 
cealment, it  will  probably   be  lost.     Whereiis  if  the  opposition  made  by 
one  creditor  be  withdrawn,  and  no  other  creditor  takes  up  the  proceed- 
ing,   the  debtor   may   obtain   the  full    benefit  of  the  statute,    without 
making  that  disclosure  which  the  statute  retjuires;  and  where  one  cre- 
ditor ha.s  begun  an  opposition  and  withdraws  it,   other  creditors  may 
lose  the  opportunity  of  o|)posing,  or  may  abstain  from  doing  so  under  an 
opinion  that  the  debtor  has  done  all  that  the  law  ref|uires  of  him.      The 
law  recpiires  that  the   debtor  shall  nuike  a  fidl   disclosiire,    and   that   ho 
shall  do  so  in  the  first  instance  by  his  scln^dule;  a  kno\vle«l;;e  that  the 
effect  of  concealment  may  he  obviated   by   Hubsequeut  bargaiiiiug,   may 
operate  as  an  inducement    to  concealment   in   the  first   instance,    which 
ought  to  be  discouraged  by  all  practicable  means.      Bargains  like  the  pre- 
sent may  also,  in  some  cases,  if  allowed,  operate  to  the  prejudice  of  an 


256         SoiTM  Cakolixa  T^ank  v.  Cask.  T.  T.  1828. 

honest  doblor,  wliose  fricmls  may  l>e  willing  to  n)nkc  some  sacrifice  in 
order  to  relieve  him  from  a  vcxalious,  though,  perhaps,  groundless  op- 
position. 

For  these  reasons,  we  think  that  the  rule  to  enter  a  nonsuit  should  he 
ir.ude  ahsolute. 

Rule  ahsolute. 


The  President,  Directors,  and  Company  of  the  BANK  of  the  State  of 
SOUTH  CAROLINA,  in  the  United  States  of  America,  v.  JOHN 
ASHTON  CASE,  JOHN  JACKSON,  and  WH.LIAM  BROWN, 
Assignees  of  the  Estate  and  Eilects  of  THOMAS  CROWDER  and 
HENRY  THOMAS  PERFECT,  Bankrupts.— p.  427. 

A.,  B  ,  and  C.  carried  on  bus'ncss  in  co-partnership  as  factors  and  commission- 
merchants  in  England  and  America;  in  England,  under  the  firm  of  A.,  C,  and 
Co  ;  in  America,  in  the  name  of  C.  alone.  When  C.  went  to  America,  he  had 
written  instructions  from  his  partners,  one  of  which  was,  "It  is  understood  that 
our  names  are  not  to  appear  on  either  bills  or  notes  for  the  accommodation  of 
others,  and  that  they  should  appear  as  little  as  possible  on  paper  at  all,  and  then 
only  as  regards  direct  transactions  with  the  house  here."  A.,  B.,  and  C,  in 
order  to  obtain  consignments  from  America,  made  advances  or  granted  drafts 
or  bills  of  exchange,  or  indorsements  of  them,  to  their  principals  on  the  secu- 
rity of  the  goods  consigned.  In  order  to  obtain  a  consignment  from  W.,  C.  in 
his  own  name  indorsed  bills  for  him,  which  were  to  be  provided  for  by  others 
drawn  by  W.  on  A  ,  C,  and  Co.  in  England,  which  were  to  be  provided  for  by 
the  proceeds  of  the  consignment.  Before  the  latter  bills  were  presented  for  ac- 
ceptance, A.  and  B.  had  become  bankrupts:  Held,  that  the  indorsement  of  the 
bills  by  C'.  must  be  considered  as  an  indorsement  by  the  firm,  and  that  they 
were  liable  upon  those  bills. 

This  was  an  issue,  dii-ected  by  the  Vice-Chancellor,  to  try  whether 
Thomas  Crowder  and  Henry  Thomas  Perfect,  the  bankrupts,  and  James 
Butler  Clough,  were,  on  the  13th  day  of  August  1825  (the  date  of  the 
commission  of  bankrupt  against  Crowder  and  Perfect),  indebted  to  the 
said  plaintifl's  in  any,  and  what  sum  of  money.  The  issue  stated  a  pro- 
mise by  the  defendants  to  pay  the  plaintiffs  one  shilling  for  every  pound 
of  the  debt  which  might  be  due  to  the  plaintiffs.  And  the  plaintiffs  aver- 
red 15,000/.  to  be  due.  The  cause  came  on  to  be  tried  before  Hicl/ockB.f 
at  the  assizes  for  the  county  of  Lancaster,  when  a  verdict  was  found  for 
the  plaintiffs,  subject  to  the  opinion  of  this  Court  on  the  following  case: 
— On  the  3d  of  November  1815,  J.  B.  Clough  entered  into  articles  of 
co-partnership  vvith  Thomas  Crowder  and  llenry  Thomas  Perfect,  the 
bankrupts,  whereby  they  agreed  to  carry  on  the  trade  or  business  of  a 
consignee  or  factor  for  persons  trading  from  the  United  States  of  Ame- 
rica to  England,  and  such  other  branches  of  business  as  they  should  mu- 
tually agree  upon,  in  co-j)artnership  for  the  term  of  four  years,  from  the 
1st  of  January  then  next;  and  by  a  clause  in  the  articles  it  was  declared 
that  the  firm  of  the  partnership  should  be  ''Crowder,  Clough,  and  Co." 
It  was  also  stipukted  by  the  articles  that  Perfect  should  forthwith  proceed 
to  the  United  States  of  America  to  advance  the  business  of  the  concern 
as  consignees  or  factors,  and  in  such  other  manner  as  might  best  answer 
the  purposes  of  the  partnership.  That  no  one  of  the  parlies  should  carry 
on  or  be  concerned  in  the  business  before  mentioned  on  their  own  sepa- 
rate account,  nor  carry  on  any  trade  in  partnership  with  any  other  per- 


8  Barnevvall  &  CuESSWELL,  427.  257 

son  or  persons  whomsoever  dining  the  said  term,  nor  should  they  carry 
on  any  trade  or  business  on  their  own  account,  distinct  from  the  said 
partnership,  nor  carry  on  any  in  the  name  of  the  firm  of  the  said  part- 
nership, or  on  account  thereof,  without  the  consent  in  writing  of  each  of 
the  parties.  That  proper  books  of  account  should  be  kept  in  England 
and  in  America,  while  Perfect  was  resident  there,  in  which  respectively 
should  be  fairly  entered  and  kept  the  accounts,  dealings,  and  concerns 
relative  to  the  aforesaid  partnership  transactions.  He  went  accordingly, 
and  transacted  business  in  America  for  the  partnership,  but  it  was  all 
done  in  his  name.  Perfect  returned  in  1S19,  and  by  an  agreement,  bear- 
ing date  the  9th  day  of  October  1819,  the  partnership  was  extended  two 
years  upon  the  former  terms,  except  in  some  particulars  not  affecting  the 
present  question;  and  the  parties  agreed  that  the)^  would  continue  to  car- 
ry on  the  said  trade  or  business  for  that  time,  and  such  other  branches  of 
business  as  the}'  should  from  time  to  time  mutually  agree  upon.  And  it 
was  agreed  that  Perfect  should  have  a  yearly  allowance  of  GOO/,  for  such 
time  as  he  should  sta)'  in  America  on  the  partnership  account ;  and  he 
<^gain  proceeded  to  the  United  States,  where  he  continued  two  years, 
transacting  the  partnership  business  in  his  own  name.  On  his  return  in 
1821,  it  was  agreed  that  the  term  of  the  co-partnership  should  be  again 
extended  two  years;  and  that  the  parties  should  continue  to  carry  on  the 
said  trade  or  business,  and  such  other  branches  of  business  as  they  should 
from  time  to  time  mutually  agree  upon,  for  that  term;  and  that  Clough 
should  succeed  Perfect:  and  a  supplementary  agreement  wasentered  in- 
to, bearing  date  the  27th  of  October  1821,  upon  the  like  terms  as  the 
lormei-  articles,  except  as  tiicrcby  altered  in  some  matters  not  affecting 
the  present  question.  And  it  was  agreed  that  Clough  should  proceed  to 
the  United  States,  and  use  his  best  endeavours  for  tlie  general  benefit  of 
the  concern,  and  should  have  a  yearly  allowance  of  500/.  for  such  time 
as  he  should  remain  in  America  on  the  partnership  account.  Previous  to 
Clough's  departure,  written  instructions  were  given  him  for  his  conduct 
in  the  United  States.  They  bear  date  the  29th  day  of  October  1821,  and 
were  signed  by  Crowder  and  Perfect,  and  they  were  approved  of  as  a 
guide  for  ttie  future  conducting  of  business.  In  the  instructions  are  the 
following  paragraplis: — *'  No  shipments  to  be  made  solely  on  our  account, 
but  the  above  price  to  regulate  shipments  in  conjunction  with  other  par- 
tics,  when  they  require  us  to  participate  in  the  risk  to  induce  them  to 
make  a  consignment.  It  is  to  l)e  hoped,  however,  that  there  will  be  no 
necessity  to  extend  this  sort  of  business,  and  that  it  will  be  as  much 
avoided  as  possible.  Our  main  object  is  coiisignnients,  either  of  ships  or 
produce,  and  with  a  view  to  secure  such,  should  we  l)e  inducy^d  to  risk  a 
share  of  shipments,  (if  such  can  be  had  without,  we  should  prefer  it,)  wo 
should  not  wish  a  larger  sum  tlian  .5000/.  to  be  risked,  even  in  the  small- 
est degree,  at  any  one  lime,  in  such  pailicipalions;  and  tlu;  result  of  these 
shipments  ought  to  he  known,  or  safely  calcidaled  on,  by  advices  from 
home,  before  any  new  arrangements  are  formed.  It  is  understood  that 
our  names  are  not  to  appear  on  cither  bills  or  notes  for  the  accommodation 
of  others;  and  that  they  should  appear  as  little  as|)ossibIe  on  paper  at  all, 
and  then  only  as  regards  direct  transactions  with  the  house  here."  The 
business  of  Crowder,  Perfect,  and  ('louifji  was  that  of  factors  or  commis- 
sion-mcrrhanls  for  principals  trading  between  (Ireat  Pirilain  and  the 
I'nited  Stales,  'i'hcir  business  in  this  coiujlry  consisletl  princi[)ally  in 
the  .sale  and  purchase  of  good.'*,  and  the  ctdleclion  of  freights  for  princi- 
VOL.    XV.  JJ 


2v58         Soi'Tif  Cakolina  Bank  v.  Case.  T.  T.  1828. 

|)als  ill  tho  I'liiteil  States  on  commission.     Their  business  in  the  Uiiilecl 
States  consisted  in  the  sale  and  purchase  of  goods,  and  in  the  collection 
of  freights  for  their  principals  in  England,  on  commission,  and  occasion- 
ally in  the  purchases  of  cotton,  jointly  with  others,  to  secure  a  consign- 
ment; and  sometimes  Clough  purchased  cotton  on  speculation,  notwith- 
standing the  clause   in  the  instructions  above  set  forth:  viz.    "  That  no 
shipments  were  to  be  made  solely  on  their  account;"  and  in  the  course 
of  this  business  Clough  occasionally  sold  and  purchased  bills  of  exchange. 
In  England  the  business  of  the  house  was  carried  on  in  the  naine  of 
Crowder,   Clough,  and  Co.;  in  the  United  States  all  the  partnership 
business  was  transacted  in    the  name    of  J.   B.   Clough  alone.      The 
bankrupts  in  England  and  Clough  in  the  United  States,  procured  con- 
signments for  their  joint  benefit  on  commission;  the  bankrupts  as  to  con- 
signments to  the  United  States  for  sale  by  Clough,  and  Clough  as  to- 
consignments  to  England  for  sale  by  the  bankrupts;  Clough  using  his  own 
name  only  in  these,  as  well  as  all  other,  transactions  in  the  United  States, 
in  order  to  obtain  consignments  from  the  United  States,  the  bankrupts  and 
Clough  made  advances,  or  granted  drafts  or  bills  of  exchange,  or  indorse- 
ments thereof  to  their  principals  in  the  United  States,  upon  the  security 
of  such  principals'  goods  consigned  to  the  bankrupts  and  Clough  for  sale 
in  Great  Britain;  and  the  business  relating  thereto  was  conducted  as  fol- 
lows: first.  In  some  cases,  bills  of  exchange  were  drawn  in  the  name  of 
J.  B.  Clough  upon  Crowder,  Clough,  and  Co.,  in  favour  of  their  princi- 
pals, and  were  delivered  to  such  principals;  secondly.  In  many  other 
cases,   bills  of  exchange  were  drawn  by  the  principals  upon  Crowder, 
Clough,  and  Co.,  and  indorsed  in  the  name  of  J.  B.  Clough,  and  deliv- 
ered to  the  principals  with  such  indorsements;  thirdly,  In  other  cases, 
bills  of  exchange  were  drawn  by  J.   B.   Clough,  in  his  own  name,  on 
Orowder,  Clough,  and  Co.,  and  indorsed  by  him,  and  sold,  and  the  pro- 
-■fjds  advanced  to  the  consignors;  fourthly,  In  other  cases,  J.  B.  Clough 
uicd  to  raise  money  for  advances  to  consignors  by  drawing  upon  Ameri- 
can houses  in  New  York,  or  by  the  consignors  drawing  on  them,  and  J. 
B.  Clough  provided  for  these  bills  by  sending  to  the  American  houses 
bills  or  England  to  be  discounted  there;  bills  on  England   not  being  al- 
ways negotiable  at  Charleston.      Consignments  of  cotton  were  procured 
by  J.  B.  Clough,  by  means  of  these  transactions,  to  the  English  house  for 
sale,  on  account  of  the  consignors,  to  a  very  great  amount.     Clough  also 
bought  and  sold  bills  of  exchange  in  his  own  name  on  speculation,  the 
profit  and  loss  whereof  was  carried  to  the  partnership  account.     Clough 
also  sold  and  purchased  goods  in  America  in  his  own  name,  for  English 
principals,  to  a  large  amount.      The  profits  made  by  the  partnership  in 
America,  in  commission  and  exchange  speculations,  in  the  name  of  J.  B. 
C''>ugh,  were  very  considerable,  amounting  in  1822  to  1377/.,  in  182.3  to 
£700/.,  in  1S21  to  5000/.,  but  in  1825  there  wasaloss.   Proper  partncr- 
s.hip  books  were  kept:  the  bankrupts  entering  in  their  books  all  the  deal- 
ings and  transactions  in  this  country,  and  Clough  entering  in  the  books 
kept  by  him  in  America  all  the  dealings  and  transactions  in  the  United 
States.     At  the  end  of  each  year  the  annual  balance  of  profit  and  loss  in 
England  and  in  the  United  States  was  divided  between  the  partners. 
Clough  during  the  whole  time  that  he  was  in  the  United  States,  viz.  from 
'  i' '  to  the  bankruptcy,  never  traded  or  drew,  indorsed,  accepted,  or 
7  ciated  any  bills  of  exchange,  or  carried  on  any  business  on  his  own 
ount.     But  he  entered  into  a  joint  speculation,  intending  it  to  be  on 


8  Barnewall  &  Chess  WELL,  427.  259 

tlie  partnership  account,  with  two  persons,  Joshua  T.  Weyman  and  Mi- 
chael Lazarus,  in  his  own  name,  to  the  extent  of  100,000/.  and  upwards, 
notwithstanding  the  clause  in  the  instructions  above  set  forth;  viz.  "We 
should  not  wish  a  larger  sum  than  5000/.   to  be  risked,  even  in  the 
smallest  degree,  at  any  one  time  in  such  participations."     This  transac- 
tion was  afterwards  adopted  by  the  bankrupts.      lie  had  no  individual 
business  whatever,  and  the  name  of  J.  B.  Clough Was  never  used  by 
him  in  trade,  or  in  drawing,  indorsing,  or  accepting,  or  negotiating  bills 
of  exchange,  except  for  the  benefit  and  on  account  of  the  partnership; 
and  all  the  partnership  business  in  the  United  States  was  carried  on  in  that 
name  and  no  other,    save  when  the  consignors  of  goods  drew  bills  of  ex- 
change on  England  on  account  of  their  consignments;  in  which  cases 
they  always  drew  on  Crowder,  Clough,  and  Co.     Clough  was  restricted 
by  the  partnership  articles  from  transacting  any  business  there  in  any 
manner  whatever,  except  on  the  partnership  account.      Clough,  who  was 
the  only  witness  examined  on  either  side  at  the  trial,   swore  that  there 
was  no  specific  agreement  between  him  and  his  partners  that  there  should 
be  a  house  under  the  name  of  J.  B.  Clough  in  America:  that  he  was  sent 
out  to  form  a  branch  of  the  house  in  America;  that  he  had  instructions 
not  to  use  their  name;  that  he  had  no  doubt  that  they  intended  he  should 
form  a  branch  of  the  house,  and  that   the  branch  was  carried  on  in 
America  in  the  name  of  J.  B.  Clough,  with  the  sanction  of  all  the  three 
partners,  although  there  was  no  specific  agreement  that  it  should  be  so 
carried  on.     Clough  obtained  from  J.  T.  Weyman,  of  Charleston,  con- 
signments of  a  large  quantity  of  cotton  to  the  house  of  Crowder,  Clough, 
and  Co.  for  sale  on  J.  T.  Weyman's  account,  and  it  was  agreed  between 
Weyman  and  Clough  that  J.  T.  Weyman  should  draw  billsupon  Coffin  and 
Weyman,  ef  New  York,  merchants,  payable  to  Clough,  and  that  Clough 
should  indorse  them;  it  being  understood  between  them  that  the  Carolina 
bank  would  discount  them,  in  order  to  make  advances  to  J.  T.  Weyman 
on  tlic  credit  of  the  consignments.      Four  bills  were  accordingly  drawn 
by  Weyman  on  Coffin  and  Weyman  for  40,000  dollars,  payable  to  J.  B. 
dough  or  order,  and  being  indorsed  "J.  B.  Clough,"  were  discounted 
by  the  plaintifis,  who  arc  a  banking  corporation  duly  constituted  by  the 
laws  of  the  United  States.      It  was  further  agreed  between  Clough  and 
the  consignor,  J.  T.  Weyman,  that  the  latter  should  draw  other  bills  on 
Crowder,  Clough,  and  Co.,  in  order  to  [)rovide  Coffin  and  Co.  with  cash 
to  pay  the  four  bills  on  them  when  at  maturity,  which  latter  bills  were  to 
be  paid  by  Crowder,  Clough,  and  Co.  out  of  the  proccctls  of  the  consign- 
ments in  their  hands.      IJills  were  accordingly  so  drawn,  and  sold  by 
Coffin  and  Co.  to  the  amount  of  5000/.,  which  house,  however,  stop- 
ped payment  soon  afterwards,  and  the  proceeds  of  the  bills  were  misap- 
plied; and  Crowder,  Clough,  and   Co.  soon  afterwards  failing,  the  bills 
wpon  them  were  not  paid.      All  the  consignments,  however,  agreed  to  bo 
made  by  «T.  T.  Weyman  to  the  house  in  Englnntl  wr-re  made,  and  receiv- 
ed by  the  Knglish  house,  anrl  disposed  of  by  them.    Hills  on  lOngland  are 
not,  in  general,   negotiable  in  Charleston,  this  was  the  cause  of  the  ar- 
rangement for  drawing  bills  in  the  first  instance  nn  Coffin  and  Weyman. 
The  bills  in  question  were  duly  presented  to  f'offin  ami  Co.  at  maturity, 
and  dishonoured,  and  due  notice  given  to  J.  B.  Cloujih  in  America.   The 
value  of  the  bills  in  question,  in  Lnglish  money,  is  .S333/.  Cs.  Sr/.     These 
particular  bills  were  not  ontered  bv.I.  B.  Clougli  in  the  books  kept  by  him, 
i>pransp  the  agreement   with   ,1.  T.   ^V'r•vn1;ul   ua-  that   liills  were  to  he 


•/^(>0  tiiBuiNs  V.  Phillips.  T.  T.  1828. 

fliawn  on  Crowdcr,  Clough,  and  Co.  to  such  an  amount  as  precisely  to 

raise  the  amount  of  the  four  bills  on  Collin  and  Co.,  and  thereby  exactly 

reimburse  their  payments,   and  as  the  bills  so  drawn  would  be  paid  in 

England  out  of  the  proceeds  of  the  consignments,  no  profit  or  loss  could 

arise  to  J.  B.  Clough  or  his  partners  from  tlie  sale  of  these  bills  on  Coffin 

and  Co.  in  America,  and,  therefore,  no  entry  was  made  by  J.  B.  Clough 

in  the  books  kept  by  him.     J.  B.  Clough  had  no  separate  estate.     If 

the  plaintiffs  are  entitled  to  recover,  a  verdict  is  to  be  entered  for  416/. 

I3.y.,  the  amount  of  the  debt  due  from  Crowder,  Perfect,  and  Clough 

being  8333/.  6*.  8^/. ;  if  not,  a  nonsuit  is  to  be  entered. 

Parke  for  the  j)laintiffs,  referred  to  Ex  parte  Emit/,  1  Rose,  61  j  Emly 

V.  Lye,  15  East,  7;  Ex  jmrte  Bolitho,  Buck.  100. 

Patteson  contra.  „  ,  ,. 

(Jur.  adv.  vult. 

The  judgment  of  the  Court  was  now  delivered  by 

Lord  Tenterden  C.  J.,  who  after  stating  the  case  said, — Upon 
these  facts  it  is  contended,  that  the  parties  are  to  be  charged  as  indorsers, 
that  is,  that  the  indorsement  by  J.  B.  Clough  is  to  be  considered  as  an 
indorsement  by  the  house  of  which  he  was  a  member,  and  we  think  that, 
under  the  circumstances  stated  in  the  case,  J.  B.  Clough  is  to  be  con- 
sidered as  the  name  of  the  firm  for  the  purposes  of  business  in  America. 

That  being  so,  the  bankrupts  and  Clough  were  liable  as  indorsers  of 
the  bills:  and  a  verdict  must  be  entered  for  the  plaintiffs  for  the  sum 
agreed  upon  at  the  trial. 

Postea  to  the  plaintiffs. 


GIBBINS  and  Another,  Assignees,  v.  PHILLIPS.— p»  437. 

After  a  verdict  for  a  (lefendant,  tlic  Court  made  a  rule  absolute  for  a  new  trial, 
and  ordered  that  tlie  costs  of  the  former  trial  should  abide  the  event  of  such 
new  trial.  The  record  was  carried  down  to  the  Spring  assizes  following,  when 
it  was  made  a  remanct.  It  was  tried  a  second  time  at  the  Summer  assizes, 
when  a  verdi(?t  was  again  found  for  the  defendant.  The  Court  afterwards  or- 
dered that  that  verdict  should  be  set  aside,  and  a  new  trial  had  between  the 
parties  upon  the  payment  of  the  costs  of  the  last  trial,  and  that  the  costs  of  the 
first  trial  should  abide  the  event  of  such  new  trial.  Upon  the  third  trial  a  ver- 
dict \vas  found  for  the  plaintiff:  Held,  that  the  plaintiff  was  entitled  to  the  costs 
occasioned  by  the  cause  having  been  made  a  remanet  at  the  assizes  next  fol- 
lowing the  term  when  the  first  rule  was  made  absolute  for  a  new  trial. 

Triis  cause  was  tried  at  the  Summer  assizes  for  the  county  of  Stafford 
182G,  when  a  verdict  was  found  for  the  defendant.  The  Court  ordered 
that  that  verdict  should  be  set  aside,  and  a  new  trial  had  between  the 
parties,  and  that  the  costs  of  the  former  trial  should  abide  the  event  of 
such  new  trial.  The  record  was  again  carried  down  to  the  Spring 
assizes  1827,  when  it  was  made  a  remanet.  It  was  tried  a  second  time 
at  the  Summer  assizes  1827,  when  a  verdict  was  again  found  for  the  de- 
fendant. The  Court  afterwards  ordered,  that  that  verdict  should  be  set 
aside,  and  a  new  trial  had  between  the  parlies  upon  payment  of  the  costs 
of  the  last  trial,  and  that  the  costs  of  the  first  trial  should  abide  the  event 
of  such  new  trial.  The  costs  of  that  trial  (not  including  those  of  the 
remanet)  were  paid  by  the  plaintiffs  to  the  defendant.  The  cause  was 
tried  a  third  time  at  the  Spring  assizes  1S28,  when  a  verdict  was  found 
for  the  plaintiffs.     The  master  allowed  to  the  plaintiffs  the  costs  (177/. 


8  Barnewall  &  Cresswell.  437.  261 

for  witnesses),  occasioned  by  the  cause  having  been  made  a  remanet  at 
the  Spring  assizes  1827.  A  rule  nisi  having  been  obtained  for  the  mast- 
er to  review  his  taxation, 

Taunton  and  Holroyd  shewed  cause.  They  cited  Standen  v.  Hally 
Sayer,  272;  Sadler  v.  Evans,  4  Burr.  1984. 

Barstow  contra. 

Lord  Tenterden  C.  J.  The  general  rule  is,  that  the  party  who  suc- 
ceeds ultimately,  is  entitled  to  the  costs  occasioned  by  the  cause  having 
been  made  a  remanet.  Here  the  plaintiffs  have  ultimately  succeeded. 
I  think  that,  as  the  rule  made  by  the  Court  after  the  second  trial  did  not 
provide  in  express  terms  for  the  costs  of  the  remanet,  they  ought  to  be 
considered  as  costs  in  the  cause,  and  that  they  were  properly  allowed  as 
such  by  the  master.     The  present  rule  must,  therefore,  be  discharged. 

Rule  discharged. 


The  KING,  on  the  Prosecution  of  G.  SPURGING,  v.  GILKES  and 

Others.— p.  439. 

An  order  of  justices  requiring  the  stewards  of  a  benefit  society  to  re-admit  A.  B., 
who  had  been  expelled,  recited  tliat  it  had  appeared  to  the  justices  that  the 
rules  of  the  society  had  been  enrolled  at  the  quarter  sessions.  On  the  trial 
of  an  indictment  against  the  stewards  for  disobeying  such  order:  Held,  that 
the  recital  was  not  evidence  of  the  enrolment  of  the  rules. 


In  re  WASHBOURN.— p.  444. 

A  creditor  had  obtained  judgment  by  default  against  his  debtor,  since  the  statute 
6  G.  4.  c,  16.  s.  108.,  and  the  goods  having  been  seized  by  the  sherifT  before, 
but  not  sold  until  after  an  act  of  bankruptcy  was  committed  by  the  debtor,  the 
Court  refused  to  compel  the  sheriff  to  pay  over  the  proceeds  of  the  sale  to  the 
assignees  of  the  bankrupt. 


B/VILEY,  surviving  Assignee  of  W.  IIALLIVVELL,  a  Bankrupt,  v. 
CULVERWELL,  BROOKS,  and  CARROLL  (c/).— p.  448. 

A.  and  Co.,  as  brokers  for  B.,  sold  goods,  then  in  their  possession,  to  C,  wliich 
were  paid  for  by  a  l)ill  drawn  by  C.  and  accepted  by  D.  C  ordered  A.  and 
Co.  to  keep  the  goods  in  their  hands,  and  sell  them  if  they  could  make  a  cer- 
tain profit.  Before  the  bill  became  due  D.  failed,  and  A.  and  C!o.  applied  to 
C.  for  security  for  tlie  bill  ;  whcrcvipon  he  gave  them  an  order  to  sell  the  goods 
and  apply  the  ])rocecds  in  jjaymcnt  of  the  1)111.  ('.  afterwards,  and  before  the 
goods  were  sold,  Ix-canie  banknipt.  A.  and  Co.  handed  over  the  goods  to  B. 
at  his  request,  but  he  afterwards  returned  ihcni,  and  after  they  were  returned, 
C.'s  assignees,  having  made  a  demand  of  the  goods,  brought  trover:  Held, 
that  they  could  not  maintain  it;  for  that  after  the  order  given  by  C.  to  A.  and 
Co.  to  sell  tlic  goods  and  ajiply  the  proceeds  in  payment  of  the  bill,  they  re- 
mained in  their  hands  subject  to  that  charge,  because  A.  and  Co.  must  be  pre- 
sumed to  have  asked  security  as  agents  for  B.,  whose  ratification  of  their  act 
for  his  benefit  might  also  be  inferred. 

(a)  The  Jtidgcs  of  this  court  sat,  as  on  foinier  occasions,  from  I  liday  the  Q7tli 
of  June  to  Wednesday  the  id  of  July  inclusive;  and  from  Monday  the  '27lh  of 
October  to  Wednesday  the  /ith  of  November  inclusive,  wlien  this  and  the  follow- 
ing cases  were  argued  and  determined. 


362  Bailey  r.  CuLvjiRWELL.  T.  T.  182H. 

TuovER  brought  by  the  plaintifl'aiul  Richard  Emett,  since  deccaseif, 
as  assignees  of  William  Ilalliwell,  a  bankrupt,  to  recover  424  beaver 
skins.  Pica,  not  guilty.  At  the  trial  before  Lord  Tenterden  C.  J.,  at 
the  London  sittings  after  Hilary  term  1827,  a  verdict  was  found  for  the 
plaintifls  for  1000/.,  subject  to  the  following  case: — 

Tiie  defendant  Carroll,  in  December  1S23,  sold  a  quantity  of  beaver 
skins  by  a  contract  in  writing  to  the  bankrupt,  through  the  agency  of 
the  other  defendants,  Culverwell  and  Brooks,  brokers,  who  had  the  skin* 
in  their  possession,  for  427/.  5s.  6d.,  to  be  paid  for  by  the  bankrupt's 
bill  on  INIessrs.  Walducks  and  Hancock,  payable  at  four  months  after 
date.  The  bankrupt's  bill  on  Messrs.  Walducks  and  Hancock,  was  sent 
to  the  defendants  Culverwell  and  Brooks,  according  to  the  terms  of  the 
contract,  inclosing  a  letter  of  which  the  following  is  a  copy: — 

*' Gentlemen, — Inclosed  you  will  fmd  a  bill  accepted  by  Walducks 
and  Co.  for  429/.  13*.  4d.  to  balance  for  the  beaver,  and  if  you  can  ob- 
tain 2^.  per  pound  profit,  sell  them;  at  present  let  them  remain  with  you 
on  that  principle. 

"William  Halliwell." 

"January  14th,  1824." 

This  bill  was  immediately  handed  over  by  the  defendants  Culverv/ell 
and  Brooks  to  the  defendant  Carroll.  In  consequence  of  the  above  let- 
ter, the  goods  remained  with  the  brokers  for  sale.  On  the  16th  of  March, 
before  the  bill  became  due,  Walducks  and  Co.  tiie  acceptors  of  the  bill 
stopped  payment,  and  the  defendant  Culverwell  in  consequence  thereof 
applied  to  the  bankrupt  for  a  further  security,  when  he  obtained  from 
him  the  following  letter: — 

*'  Messrs.  Culverwell  and  Brooks. 

"Please  to  sell  the  beaver  you  hold  of  mine,  and  take  the  proceeds  to 
pay  my  bill  on  Walducks  and  Hancock;  any  profit  arising  from  it  pay 
over  to  me. 

"Yours,  &c. 

"William  Halliwell." 
"March  16." 

The  goods  were  not  sold  in  pursuance  of  this  letter,  but  remained 
with  the  defendants  Culverwell  and  Brooks  until  they  were  delivered 
under  an  order  of  defendant  Carroll,  as  after  mentioned. 

The  bill  of  exchange  was  dishonoured  on  arriving  at  maturity,  and 
notice  thereof  was  duly  given  to  the  bankrupt  on  the  17th  of  May;  and 
the  defendant  Culverwell,  when  examined  before  the  commissioners, 
stated,  that  on  the  said  17th  day  of  May  they  were  attached  at  the  suit 
of  Edward  Carroll,  by  process  out  of  the  court  of  the  Lord  Mayor  of 
the  city  of  London. 

A  commission  of  bankrupt  issued  agtiinst  the  bankrupt  on  the  4th  of 
June  1824,  which  was  opened  on  the  11th  of  June,  on  an  act  of  bank- 
ruptcy committed  on  the  21st  of  May  preceding;  and  the  plaintiff  and 
one  Richard  Emett  (who  died  since  the  commencement  of  this  action), 
were  duly  chosen  assignees,  and  the  usual  assignment  made  to  them  by 
the  commissioners  previous  to  the  making  of  the  demand  hereinafter 
mentioned.  On  the  U-th  of  July  1824,  the  defendant  Carroll  gave  an 
order  to  the  other  defendants  to  deliver  the  skins,  to  a  porter  who 
brought  the  order,  on  his  account;  which  was  accordingly  done.    On  the 


8  Barnewall  &  Cresswell,  448.  263 

-•jlh  of  November  1824,  Carroll  gave  an  order  to  the  otlier  defendants  to 
receive  back  the  skins,  and  such  defendants,  on  the  same  day,  received 
them  again  into  their  possession,  where  they  remained  until  after  the 
trial. 

On  the  15th  of  Novcmlicr  1824,  the  plaintiffs  caused  a  demand  of  the 
skins  to  be  made  upon  the  defendants  Culverwell  and  Brooks,  and  at 
the  same  time  offered  to  pay  the  charges  for  warehousing  the  same, 
when  said  defendants  referred  the  plaintiff  to  their  attornies,  and  refused 
to  deliver  them  up. 

It  was  agreed  on  the  trial  ihat  the  skins  should  be  sold,  and  they  have 
since  been  sold  for  311/.  14^,  The  question  for  the  opinion  of  the  Court 
was,  whether  the  plaintiff  was  entitled  to  recover,  and  if  he  was,  whether 
the  full  value  of  the  skins  or  nominal  damages  only. 

Par/ce  (or  the  plaintifl',  cited  Scott  v.  Porcher,  3  Mer.  652;  JVilliams 
V.  Everett,  14  East,  5S2;  Yates  v.  Bell,  3  B.&  A.  643  j  Solhj  v.  Rath- 
bone,  2  M.  &  S.  29S. 

F.  Pollock,  contra,  was  stopped  by  the  Court. 

Baylev  J.  There  can  be  no  doubt  but  that  the  assignees  take  subject 
to  all  equitable  rights  attaching  upon  the  bankrupt.  The  first  question, 
therefore,  is.  What  was  the  effect  of  the  sale  to  the  bankrupt,  and  of  the 
interference  of  Culverwell  and  Co.  on  the  16th  of  March,  and  the  letter 
then  written  by  the  bankrupt.  If  he  was  bound  by  it  so  as  to  give  Car- 
roll, if  he  acceded  to  it,  a  right  to  have  the  goods  sold  and  the  proceeds 
paid  over  to  him,  then  when  Halliwell  became  bankrupt,  the  goods  re- 
mained in  the  hands  of  Culverwell  and  Co.,  subject  to  that  right.  When 
the  goods  were  originally  sold  by  Carroll,  and  placed  in  Culverwell's 
hands,  the  property  vested  in  Halliwell,  and  Culverwell  held  them  as 
his  agent;  and  if  nothing  had  been  done  by  him  to  vary  the  relation  in 
which  Culverwell  stood  with  him,  the  goods  would  have  remained  his, 
and  his  assignees  would  have  been  entitled  to  the  possession  of  them. 
But  on  the  16th  of  March  it  was  found  that  the  bill  was  bad,  and  Cul- 
verwell made  application  for  further  security.  In  what  character  was 
that  application  made?  In  the  first  instance,  acting  as  agent  for  the  seller, 
he  stij)ulated  for  a  bill;  when  it  was  found  that  the  bill  would  probably 
he  unproductive,  he  applied  for  further  security;  that  could  only  be  in 
the  character  of  a  person  acting  for  and  on  behalf  of  Carroll.  It  was  not, 
indeed,  by  virtue  of  any  prior  authority,  but  there  are  cases  innumerable 
cstai)lishing  that  the  subsefpient  ratification  of  an  act  done  by  an  agent 
relates  back  to  the  time  when  it  was  done.  This  was  an  act  done  for 
the  benefit  of  Carroll;  it  was  an  act  that  could  not  prejudice,  hut  might 
l)e  beneficial  to  him;  and  the  presumption  is,  that  a  party  will  adopt  acts 
done  for  his  benefit.  Now  the  order  by  Halliwell  to  Culverwell  to  sell 
tlie  goods  and  pay  Carroll,  was  given  on  the  16th  of  March,  and,  by  re- 
lation, Carroll's  adoption  would  make  it  binding  from  that  time.  At 
that  time  Halliwell  had  power  to  give  the  order,  and  if  the  adoption  is 
to  be  referred  to  that  date,  he  had  no  longer  any  power  to  revoke.  The 
case  of  S'cott  v.  Pnrc/icr  is  altogether  different.  There  the  order  was 
given  by  a  principal  to  his  agent,  in  that  character  alone:  he  might, 
therefore,  at  any  subsequent  time  control  that  agency.  Here  Culverwell 
and  Co.  were  not  agents  for  Halliwell  only,  but  for  Carroll  also.  It  has 
been  urged,  that  if  after  the  order  was  given  the  goods  had  been  destroy- 
c<l  by  fire,  the  debt  to  ('arroll  would  have  remained,  but  that  is  the  case 
with  respect  to  every  drbt  wIut'-  good^  upon  which  there  is  a  lien  for 


264  Bailey  v.  Culveuwell.  T.  T.  1828. 

It  arc  acciilciilally  destroyed.  The  debt  remains  although  the  lien  is 
lost  IIps  any  thing  been  done  by  Carroll  to  reject  tlie  arrangement 
made  between  Halliwell  and  Culverwell?  It  appears  that  an  attachment 
was  issued  by  him,  but  what  became  of  it  is  not  stated.  That  proceed- 
ing did  not  necessarily  repudiate  the  benefit  ol' Ilallivvell's  order.  Per- 
liaps  Carroll  did  not  then  know  of  the  order,  and  he  may  have  abandon- 
ed the  attachment  upon  being  informed  of  the  order.  We  now  come  to 
the  question,  What  is  the  legal  operation  of  the  transaction  of  the  14th 
of  July,  when  the  skins  were  handed  over  to  Carroll?  If  that  was  a  con- 
version, the  action  lies  for  nominal  damages.  There  is  no  doubt  that 
Culverwell  was  to  sell,  and  Carroll  had  no  right  to  the  possession  of  the 
goods.  But  was  the  delivery  to  him  a  wrongful  conversion,  and  were 
not  all  things  restored  and  in  statu  quo  before  the  assignees  of  Halliwell 
in  any  way  interfered?  No  damage  was  sustained  by  them,  and  I  think 
that  the  mere  change  of  possession  for  that  interval  of  time  worked  no 
wrong,  for  which  an  action  of  trover  is  maintainable.  For  these  reasons 
I  think  that  Halliwell  and  his  assignees  were  bound  by  the  bargain  of 
the  16th  of  March,  that  the  delivery  to  Carroll  was  not  a  good  ground 
of  action,  and,  consequently,  that  a  nonsuit  must  be  entered. 

LiTTLEDALE  J.  I  am  entirely  of  the  same  opinion.  After  the  goods 
were  sold,  and  the  bill  delivered  in  payment,  both  the  property  and  pos- 
session were  out  of  Carroll,  and  the  goods  were  entirely  at  the  disposal 
of  Halliwell.  Culverwell,  however,  applied  to  Halliwell  for  security. 
In  what  character  did  he  do  so  ?  He  sold  the  goods  and  received  the 
bill  for  Carroll,  and  had  nothing  whatever  to  do  with  it  on  his  own  ac- 
count. Halliwell,  upon  his  application,  gave  the  letter  authorizing  a 
sale  of  the  goods  and  the  application  of  the  proceeds  to  the  payment  of 
his  debt  to  Carroll.  It  is  said  that  as  this  was  not  communicated  to 
him,  and  there  wasnoevidence  of  his'having'ratified  the  act  of  Culverwell, 
he  is  to  be  treated  as  a  stranger,  and  cannot  avail  himself  of  it  after  the 
bankruptcy  of  Halliwell.  These  matters  certainly  are  not  expressly 
stated;  but  if  the  Court,  from  the  facts  stated  in  the  special  case,  can 
reasonably  infer  that  there  was  such  ratification,  they  may  give  judg- 
ment accordingly.  Now  it  is  clear  that  Carroll  was  endeavouring  to 
secure  himself  as  far  as  possible,  for  he  made  an  attachment,  and  it  is 
but  reasonable  to  suppose  that  he  would  ratify  any  act  done  by  Culverwell 
for  his  benefit.  Then  as  to  the  second  point,  the  facts  do  not  shew  a 
wrongful  conversion.  The  case  differs  from  Solly  v.  liathbone;  there 
the  factors  of  the  plaintiff  had  handed  over  the  goods  to  the  defendant 
upon  some  arrangement  between  them,  and  the  latter  had  actually  sold 
them.  Here  the  goods  were  returned  by  Carroll,  and  were  in  the  hands 
of  Culverwell  and  Co.  at  the  time  when  the  demand  was  made.  The 
rule  for  entering  a  nonsuit  must,  therefore,  be  absolute. 

Rule  absolute. 


SWANN  V.  The  Earl  of  FALMOUTH  and  JENNINGS.~p.  156. 

Where  a  landlord's  agent  uent  upon  the  tenant's  premises,  walked  round  tlicm, 
and  gave  a  written  notice  that  he  liad  distrained  certain  goods  lying  there  for 
an  arrcar  of  rent,  and  that  unless  the  rent  was  paid,  or  the  goods  replevied 
■within  five  days,  they  would  be  appraised  and  sold,  and  then  went  away,  not 
leaving  any  person  in  possession:  Held  that  this  was  a  sufficient  seizure  to  give 


8  Barnewall  &  Cress  WELL;  456.  265 

Viie  tenant  a  right  of  action  for  an  excessive  distress;  and  that  quitting  the  pre- 
mises without  leaving  any  one  in  possession  was  not  an  abandonment  of  the 
tlistress,  the  11  G.  2.  c.  19.  s.  10.  giving  the  landlord  power  to  impound  or  other- 
wise secure  on  the  premises  goods  distrained  for  rent  arrear. 

Case  for  an  excessive  distress.     Plea,  not  guilty.     At  the  trial  be- 
fore Gaselee  J.,  at  the  last  Spring  assizes  for  Cornwall,  it  appeared  that 
the  plaintiff  was  tenant  to  the  Earl  of  Falmouth  of  a  wharf  called  Point 
Quay,  at  the  yearly  rent  of  150/.,  where  he  carried  on  the  business  of 
a  dealer  in  coals,  timber,  iron,  and  other  things.     On  the  9th  of  Januar)'^ 
there  was  an  arrear  of  rent  amounting  to  262/.  lOy.  due  to  the  earl,  and 
on  that  day  the  other  defendant  (clerk  to  the  earl's  attorney)  went  to 
the  plaintiff's  premises  and  inquired  of  his  clerk  whether  the  plaintiff 
Avas  there.      He  was  answered  in  the  negative,  and  then  said,   "Mr.  C. 
Lord  Falmouth's  steward  is  now  on  the  quay,  and  intends  to  distrain 
for  Lord  Falmouth's  rent."     The  steward  and  Jennings   then  walked 
round  the  wharf,  upon  which  the  plaintiff  had   various  separate  parcels 
of  goods  lying,  and  afterwards  left  the  following  notice  of  distress, 
signed  by  Jennings:   "  Take  notice,  that  by  virtue  of  a  proper  authority 
from  the  Earl  of  Falmouth  I  have  this  day  taken  and  distrained  at  Point 
Quay,  and  the  cellars  and  premises  thereunto  belonging,  situate,lying,  and 
being  in  the  parish  of  Feock,  in  the  county  of  Cornwall,  which  you  now 
hold  of  him  at  the  yearly  rent  of  150/.,  the  following  goods  and  chattels, 
to  wit,  a  quantity  of  coals  now  lying  in  heaps  on  Point  Quay  aforesaid, 
a  quantity  of  slate  ditto,  aquantity  ot  balk  ditto.     All  which  goods  and 
chattels  1  have  left  on  the  said  premises,  and   have  distrained  the  same 
for  the  recovery  of  the  sum  of  262/.  IO5.  due  to  him  at  Christmas  last, 
for  rent  and  arrears  of  rent  of  the  said  premises.     And  you  are  further 
to  take  notice,  that  unless  you  pay  the  said  rent  and  arrears  so  due, 
together  with  the  costs  and  charges  of  this  distress,  or  cause  the  said 
goods  and  chattels  to  be  duly  replevied  within  five  days  from  the  delivery 
hereof,   the  same  will  be  ^apjjraised  and  sold  according  to  law.      Datcfl 
8th  January  1827."     Defendant  Jennings  and  the  steward  then   went 
away,  and  did  not  leave  any  person   in  possession  of  tlie  goods  seized, 
which  were  worth  more  than  1000/.     On  the  12th  of  January,  the  plain- 
tiff requested  that  some   handbills  which  had   been    prepared   to  give 
notice  of  a  sale  of  the  distress,  might  not  be  published;  this  was  consent- 
ed to,  and  he  afterwards  paid  the  arrears.      All  the  goods  on  the  wharf 
having  been  seized,  the  plaintiff  was  prevented  from  carrying  on  his 
business  for  several  days.     Upon  these  Hicts,  it  was  contended  for  the 
defendants,  that  the  mere  walking  round  the  premises,  without  marking 
or  even  touching  the  goods,  or  leaving  any   person  tlierc  to  keep  pos- 
session, did  not  amount  to  a  seizure,  and  that,   conscqueiUly,  tlio  action 
was  not  maintainable.      The  learned  Judge  overruled  the  objection,  and 
left  the  case  to  the  jury,  who  found  a  verdict  for  the  plaintill   with   '10/. 
damages.      In  Easter  term  a  rule  nisi  for  a  new  trial  was  obtained,   on 
the  grounds  that  no  seizure   was  in  fact  proved,  an<l   that  ihe'damagejj 
were  excessive:  and  now  the  Court  called  u|joii 

Follvtt  tostqiport  the  rule  on  the  first  ground,  who  referred  (o  Fitz.  N. 
11.  102,  (l'\);  Dud  v.  M(tns;n',  6  Mod.  215;  lUtidcsv.  ^ilrunddle,  1  M. 
&.  S.  711.  (lJ|)nn  a  suggestion  from  the  Court,  the  plaintiff's  counsel 
consented  that  the  damages  should  be  reduced  to  20/.) 

Havley  J.      This  is  not  a  question  bctwron  the  l.-indlord  and  a  lliiid 
person,  but  between  him  an<l  hi-i  tenant;  and  liinpo'nt^  lo  he  fonsid'jicd 
VOL.  XV.  .'M 


266  Elsmoul  v.  St.  Buiavells.  T.  T.  1828. 

are,  whether,  as  hctwcen  them,  tliere  ever  was  a  seizure,  and  whether 
there  was  such  an  ahandonmcnt  of  the  distress  hy  the  landlord  as  could 
liave  deprived  him  of  the  right  to  treat  the  tenant  as  a  wrong-doer,  had 
lie  taken  away  the  goods.  The  agents  of  Lord  Falmouth  went  upon  the 
premises  for  the  purpose  of  distraining,  and  afterwards  sent  written  no- 
lice  of  what  they  had  heen  doing.  That  is  evidence  against  the  landlord 
that  they  had  actually  made  a  distress.  Then,  was  the  distress  abandon- 
ed .■*  If  it  w'as,  no  doubt  the  possession  re-vested  in  the  tenant.  The 
statute  11  G.  2.  c.  19.  s.  10.  enables  the  landlord  to  "  impound,  or  other- 
wise secure  upon  the  premises,"  goods  that  have  been  distrained.  Then 
look  at  the  notice  delivered  by  Jennings.  He  says  that  the  goods  have 
been  distrained,  and  unless  they  are  replevied,  or  the  rent  paid  within 
five  days,  they  will  be  appraised  and  sold.  That  does  not  indicate  any  in- 
tention to  abandon  the  distress,  but  to  leave  the  goods  on  the  premises 
in  the  custody  of  the  law.  The  case  of  Dod  v.  Moiif^er  must  be  con- 
sidered with  reference  to  the  state  of  the  law  at  the  time  when  it  occur- 
red. The  landlord,  then,  had  no  right  to  keep  the  goods  on  the  premis- 
es ;  if,  therefore,  he  quitted  possession  of  the  goods  whilst  they  remain- 
ed on  the  premises,  that  was  an  abandonment  of  the  distress;  but  the  mere 
leaving  of  the  goods  in  a  place  where  he  has  aright  to  keep  them,  with- 
out any  thing  to  indicate  an  intention  to  abandon  the  distress,  cannot  ope- 
rate as  an  abandonment.  It  would  be  very  hard  upon  the  tenant  if  this 
were  otherwise,  for  then,  in  all  cases  of  distress  by  the  landlord,  upon 
premises  where  a  man  cannot  remain  in  possession,  he  must  immediate- 
ly remove  the  goods.  In  the  present  case,  it  could  not  be  expected  that 
the  landlord's  agent  or  servant  should  remain  all  night  upon  the  wharf; 
and  if  that  had  been  necessary  in  order  to  retain  possession,  the  goods 
must  have  been  carried  elsewhere,  which  would  have  produced  a  very 
serious  injury  to  the  tenant. 

HoLUOYD  J.  The  tenant,  by  asking  indulgence,  recognized  that  which 
had  been  done  as  an  act  of  seizure,  and  was  not  unlike  some  cases  of  ar- 
rest where  the  party  submits  to  it  without  a  corporal  touch  by  the 
bailiff. 

LiTTLEDALE  J.  I  am  of  opinion,  that  as  between  these  parties  there 
was  an  original  seizure;  and  that  there  was  not  an  abandonment;  for 
since  the  statute  11  G.  2.  the  landlord  may  keep  the  goods  on  the  pre- 
mises. The  case  might  have  been  different,  had  the  question  arisen  be- 
tween the  landlord  and  an  execution-creditor,  or  a  purchaser  for  valuable 
consideration  without  notice,  for  the  landlord  might,  perhaps,  be  consi- 
dered to  have  lost  his  right  as  against  third  persons  if  he  neglected  to  give 
reasonable  notice  of  it.  The  rule  for  a  new  trial  must,  therefore,  be  dis- 
charged. 

Rule  discharged. 

Erski7ie  and    C'olcridt^r  \vorc  to  have  opposed  the  rule. 


ELSMOKE  v.  The  Inhabitantsof  the  Hundred  of  ST.  BRIA- 
VELLS.— p.  461. 

A  building  intended  for,  and  constructed  as,  a  dwelling  house,  but  which  had  not 
been  completed  or  inhabited,  and  in  which  the  owner  had  deposited  straw  and 
agricultural  implements.  Held,  not  to  be  a  house,  outhouse,  or  barn  within  the 
meaning  of  the  stat.  9  G.  I.e.  22.  s.  7.  so  as  to  entitle  the  owner  to  maintain  an 
action  against  the  hundred  for  an  injury  sustained  by  him  in  consequence  of 
malicious  setting  fire  to  the  same. 


SBaunewall  &  Cresswell,  471.  267 


The  KING  v.  The  Inhabitants  of  HIPSWELL.— p.  466. 

The  statute  28  G.  3.  c.  48.  s.  4.  makes  void  all  indentures  whereby  children  un- 
der eight  years  of  age  are  bound  apprentices  to  chimney-sweepers,  and  no  set- 
tlement can  be  gained  by  serving  under  them. 


CORNISH  and  Another  v.  JOHN  SEARELL.— p.  471. 

A.  being  tenant  of  premises  under  an  indenture  of  lease  granted  by  B.,  a  seques- 
tration issued  out  of  the  Court  of  Chancery  against  the  latter.  A.  then  signed 
the  following  instrument : — "1  hereby  attorn,  and  become  the  tenant  to  C.  and 
D.,  two  of  the  sequestrators  named  in  the  writ  of  sequestration  issued  in  the 
said  suit  in  Chancery,  and  to  hold  the  same  for  such  time  and  on  such  conditions 
as  may  be  subsequently  agreed  upon :"  Held,  that  this  was  an  agreement  to 
become  tenant,  and  required  a  stamp  :  Held,  secondly,  that  the  defendant  not 
having  received  possession  of  the  premises  from  C.  and  D.,  might  dispute  their 
title,  and  that  the  lease  not  being  proved  to  have  been  surrendered,  was  an  an- 
swer to  the  action. 

Assumpsit  for  use  and  occupation.  Plea,  general  issue.  At  the  trial 
before  Littledale  J.,  at  the  Spring  assizes  for  the  county  of  Cornwall, 
1S2S,  the  plaintiffs,  in  order  to  prove  that  the  defendant  held  the  pre- 
mises as  tenant  to  them,  put  in  the  following  document,  signed  by  the 
defendant,  and  bearing  date  the  31st  of  January,  182G,  as  an  acknow- 
ledgment by  him  of  that  fact:  "I  do  hereby  attorn,  and  become  the 
tenant  of  a  certain  estate  and  premises  called  Goulds,  and  also  of  certain 
closes  of  land,  and  orchard,  and  premises,  called  Cleave  and  Westaway, 
situate  in  Staverton,  in  the  county  of  Devon,  to  James  Cornish  and 
Frederick  Angel,  two  of  the  sequestrators  named  in  a  certain  writ  of 
sequestration  issued  in  a  certain  cause  now  pending  in  the  Court  of 
Chancery,  between  Richard  Marshall,  George  Drake,  and  Allen  Browne, 
plaintiffs,  and  Allen  Searell,  defendant,  and  to  hold  the  same  for  such 
time,  and  on  such  conditions,  as  may  be  subsequently  agreed  on  be- 
tween me  and  the  sequestrators  aforesaid."  It  was  objected  by  the  de- 
fendant's counsel  that  this  document  amounted  to  an  agreement,  and  re- 
quired a  stamp;  and  even  assuming  that  it  was  a  mere  acknowledgment 
by  the  defendant  that  he  had  I)ecomc  tenant  to  the  plaintiffs,  llicy  as  se- 
questrators having  no  legal  estate  in  the  premises  could  not  maintain  this 
action,  'i'he  learned  Judge  reserved  tlu;  |)oinl.  The  plaititills  then 
called  a  witness,  who  slated  that  he,  on  the  part  of  the  plaintills,  had,  in 
May  1S2G,  apjilied  to  the  defendant  for  payment  of  rent,  but  tiie  lattci' 
refused  to  f)ay,  and  in  fact  never  bad  p;iid  rent  to  the  plaintills.  The 
defendant  then  put  in  an  indenture  of  lease,  dated  in  June  1816,  where- 
by Allen  Searell,  the  father  of  the  defendant,  demised  to  him  the  pre- 
mises in  question  for  twenty-one  years,  at  the  reiit  of  20/. ,  and  contend- 
ed, that  as  he  held  under  this  lease,  and  had  never  surrendered  it  by 
deed,  or  by  act  and  operation  of  law,  he  still  continued  to  hold  under 
it,  and,  therefore,  thnt  be  w;is  lial)le  not  to  lln*  plaiiitifls,  but  to  the  les- 
sor for  rent.  The  plaintiffs  ob)rolcd  that  the  delcndant  having  attorned, 
could  not  dispntc  their  title.  'I'o  that  it  was  answered,  tli.il  that  was 
the  rub;  where  the  tenant  attorned  li>  a  person  deriving  title  from  iIk^ 
original  landlord.  Here  the  plaintills  were  strangers,  and  had  no  leg.d 
ti(U<  »n  (||c  1,111(1,  f)i  i()  te'-i'ive   111'-  rent.      The   juiv  found  lor  tbe  plain- 


2r)8  Co  KM  SI  I  V.  Skauim.i..  T.  T.  1828. 

lifl's,  aiul  tliat  there  was  no  ap])licalion  for  rent  in  INIay  l.S'2G.  A  rule 
nisi  for  entering  a  nonsuit  having  been  obtained  by  IVi/de  Serjt.  in  last 
Easter  term, 

]Me7'cicether  Serjt.  and  R.  Bayly  now  shewed  cause.  They  cited  Grey 
V.  Smith,  1  Campb.  3S7;  IVatkins  v.  Hewlett,  1  Brod.  &13.  Ij  Drant 
V.  Broivn,  3  B.  &  C.  665. 

Bayley  J.  I  think  that  the  plaintiffs  are  not  entitled  to  recover. 
On  the  1st  of  January  1S26,  the  defendant  held  the  premises  in  ques- 
tion under  a  lease  granted  by  his  fatiicr,  Allen  Searcll,  against  whom  a 
sequestration  issued  out  of  Chancery.  The  plaintiffs  were  the  seques- 
trators. The  defendant,  at  the  time  when  this  action  was  brought,  must 
have  continued  to  hold  under  that  lease,  unless  it  had  been  put  an  end 
to  by  actual  surrender  by  deed,  or  by  act  and  operation  of  law.  Unless 
there  was  evidence  to  shew  that  that  lease  had  been  surrendered  or  put 
an  end  to,  he  was  liable  by  law  to  pay  the  rent  to  the  lessor  according  to 
the  covenants  in  the  lease.  On  the  3lst  of  January  1826,  the  defendant 
signed  the  instrument,  which  it  is  contended,  is  an  attornment;  but 
which  appears  to  be  an  agreement  or  bargain,  in  distinct  terms,  between 
the  plaintiffs  and  the  defendant,  that  the  latter  should  become  the  tenant  to 
the  plaintiffs  as  sequestrators;  and  if  it  be  an  agreement,  then  it  clearly 
required  a  stamp.  By  the  latter  part  of  the  instrument,  it  is  stipulated 
that  the  defendant  shall  hold  for  such  time,  and  on  such  conditions,  as 
the  parties  may  subsequently  agree  upon.  It  has  been  insisted,  that  that 
stipulation  was  evidence  to  go  to  the  jury,  that  the  lease  was  not  at  that 
time  a  subsisting  lease.  I  think  that  that  at  most  was  only  evidence  to 
shew  that  the  lease  might  thereafter  have  been  put  an  end  to,  not  that  it 
was  already  determined.  The  tenant  may  have  intended  to  continue  to 
hold  under  the  lease,  if  the  sequestrators  offered  him  terms  less  benefi- 
cial to  him  than  those  contained  in  the  lease,  but  to  surrender  it  if  they 
offered  him  better  terms.  I  tliink,  therefore,  that  as  it  was  not  proved  that 
the  lease  had  been  surrendered  at  the  time  when  the  instrument  (which  is 
said  to  be  an  attornment)  was  signed,  it  was  an  answer  to  the  action. 
But  even  if  there  were  no  lease,  I  should  have  great  difficulty  in  saying 
that  the  plaintiffs  were  entitled  to  maintain  this  action.  The  instrument 
describes  the  character  of  the  persons  to  whom  the  defendant  was  to  be- 
come tenant;  they  are  stated  to  be  two  of  the  sequestrators.  As  se- 
f|uestrators,  they  have  no  legal  right  to  receive  the  rents.  It  has  been 
said,  that  the  defendant,  having  agreed  to  become  tenant  to  the  plain- 
tiffs, cannot  dispute  their  title.  If  the  defendant  had  received  possession 
from  them,  he  could  not  have  disputed  their  title.  In  Rogers  v.  Pitcher, 
'i  Taunt.  202,  and  Gravener  v.  JVoodhouse,  1  Bingh.  38,  the  distinction 
is  pointed  out  between  the  case  where  a  person  has  actually  received 
])ossession  from  one  who  has  no  title,  and  the  case  where  he  has  merely 
attorned,  by  mistake,  to  one  who  has  no  title.  In  the  former  case  the 
tenant  cannot  (except  under  very  special  circumstances)  dispute  the 
title;  in  the  latter  he  may.  In  this  case  the  defendant  agreed  to  become 
tenant  to  the  plaintiffs  as  sequestrators.  They  may  have  an  equitable 
title  to  the  rent,  hut  not  a  legal  one.  And  as  it  appears  on  the  Aice  of 
the  instru.ment,  which  the  plaintiffs  rely  upon  in  support  of  their  claim, 
that  they  have  no  legal  right  to  receive  the  rent,  I  incline  to  think  that, 
independently  of  the  lease,  they  could  not  recover  in  this  action.  It  is 
ti.'inecessary,  however,  to  decide  the  case  on  that  ground.  I  am  of 
opinion,  firft,  that  the  instrument  was  not  admissible  in  evidence  for 
waul  of  a  btanipj  and,  secondly,  that  as  there  is  no  ground  for  inferring 


8  Barxewall  &  Cresswell,  471.  269 

tliat  Ihc  lease  was  put  an  end  to,  it  was  a  subsisting  lease,  and  that  be- 
ing so,  the  father  of  the  defendant  was  entitled  at  law  to  receive  the 
rent.   The  rule  for  entering  a  nonsuit  must,  therefore,  be  made  absolute. 

HoLROYD  J.  I  think  this  action  cannot  be  supported.  Where  the 
original  landlord  parts  with  his  estate,  and  transfers  it  to  another,  and 
the  tenant  consents  to  hold  of  that  other,  the  tenant  is  said  to  attorn  to  the 
new  landlord.  The  attornment  is  the  act  of  the  tenant's  putting  one 
person  in  the  place  of  another  as  his  landlord.  The  tenant  who  has  at- 
torned, continues  to  hold  upon  the  same  terms  as  he  held  of  his  former 
landlord.  But  here  the  agreement  is  for  a  new  tenancy,  and  is  for  a 
time,  and  upon  conditions  which  may  vary  from  those  in  the  former 
lease,  according  to  the  agreement  of  the  parties.  I  think,  therefore, 
that  this  instrument  was  an  agreement,  and  not  a  mere  attornment,  and 
required  a  stamp.  The  plaintifls  are  described  in  the  paper  which  they 
have  given  in  evidence  as  sequestrators.  As  such  they  have  no  legal 
estate.  I  doubt,  therefore,  whether,  independently  of  the  lease,  they  could 
recover  for  the  occupation  of  the  premises  by  the  defendant.  In  Ft^on- 
tin  v.  Small,  Ld.  Raym,  1418,  a  person  was  empowered  by  warrant 
of  attorney  to  execute  a  deed  for  another:  and  it  was  held,  that  a  lease 
importing  to  be  made  by  the  lessor,  as  attorney  for  another,  was  void 
upon  the  face  of  it.  The  former  lease  is  at  all  events  an  answer  to  the 
action.  There  was  no  evidence  to  raise  any  inference  that  it  had  been 
surrendered  to  the  original  lessor,  and  the  plaintifls  as  sequestrators 
could  not  accept  a  surrender.  There  seems  to  me  to  be  a  want  of  con- 
sideration for  the  defendant's  agreement  to  give  up  the  term  he  had  un- 
der that  lease. 

LiTTLEDALE  J.  I  think  the  document  ought  to  have  been  stamped.  It 
contained  an  agreement  that  the  defendant  should  become  tenant  to  the 
plaintiffs,  who  had  no  legal  estate  in  the  premises.  That  is  not  an  attorn- 
ment. I  think, also,  the  lease  would  prevent  the  plaintifls  from  recovering 
in  this  action.  The  defendant,  by  setting  up  the  lease,  does  not  disputethc 
title  of  the  person  by  whom  he  was  let  into  possession,  or  of  any  person 
claiming  under  him.  Besides,  by  the  agreement,  the  defendant  doc^not 
recognize  the  title  of  the  plaintifls  as  individuals,  but  as  sequestrators.  In 
that  character  they  can  have  no  legal  title  to  the  renl;  at  all  events,  the  lease 
being  an  existing  lease,  was  an  answer  to  the  action,  inasmuch  as  it 
thereby  appeared  that  the  title  to  receive  the  rent  was  in  a  third  person. 

Rule  absolute. 


PHILLIPS  v.  ALLAN. --p.  477. 

A  discharge  of  an  insolvent  dcl)tor  upon  a  cc-ssio  hononnn  !))■  tlic*  court  of  ses- 
sion in  Scotland,  is  no  answer  to  an  action  bronj^lit  by  an  I-'.n.i^lish  subjec  t  in 
a  court  in  this  country  to  recover  a  debt  contracted  in  l-ji^iland,  allbou^h 
it  ai)i)earcd  that  the  ijlainlifT  opposed  the  discharge  of  the  (UiVii<laiil  in  tht; 
Scotch  court. 

Senible,  That  it  would  have  been  an  answer  to  the  action  if  the  plaintifT  had 
claimed  to  have  the  i)enefit  of  the  Scotch  law,  and  to  take  a  distrii)utive  share 
of  the  property  of  the  insolvent. 

Declaration  by  the  plainlifl',  aa  drawer,  against  the  defendant,  as 
acceptor  of  a  bill  of  exchange  for  lOyA,  dated  London,  I7th  day  ol 
December  1S2I,  payable  two  month."  after  date.     Plea,  that  after  the 


270  Phillips  v.  Allan.  T.  T.  1828. 

accruinj;  of  the  several  causes  of  action  in  tlic  declaration  mentioned,  and 
before  the  coniniencement  of  tliis  suit,  to  wit,  on  the  4th  of  July  182b', 
the  defendant  was  a  prisoner  for  debt,  at  the  suit  of  one  John  Sim,  in  a 
certain  prison  called  thcToibooth  ofCanongate,  in  that  part  of  the  United 
Kingdom  called  Scotland,  to  wit,  at,  &c.;  and  being  so  in  prison  he,  de- 
fendant, afterwards,  to  wit,  on,  &c.,  at,  &c.,  did  present  unto  the  Lords 
of  his  Majesty's  council  and  s  ssion  of  that  part  of  the  United  Kingdom 
called  Scotland,  a  written  pefition,  setting  forth  that  on  the  20th  of  May 
1S26,  he,  the  defendant,  was  incarcerated  in  the  Tolbooth,  by  virtue  of 
letters  of  caption,  raised  at  the  instance  of  Sim,  and  that  he,  defendant, 
was  thereafter  arrested  in  the  Tolbooth,  by  virtue  of  letters  of  caption  at 
the  instance  of  certain  other  persons  therein  named,  and  that  he  was  con- 
tinually oppressed,  and  in  danger  of  being  arrested  at  the  instance  of 
other  persons  thereinafter  named,  his  real  or  pretended  creditors,  (na- 
n>ing,  among  others,  the  plaintiff,)  and  also  that  the  inability  of  him, 
defendant,  to  pay  his  debts,  was  not  occasioned  by  any  fraud  in  him, 
but  was  owing  to  misfortunes  and  losses  sustained  by  him,  as  would,  if 
required,  be  particularly  condescended  in  the  course  of  that  process,  and 
although  he  had  offered  to  convey  his  whole  effects  to  his  said  creditors, 
yet  they  refused  to  accept  thereof,  or  consent  to  his  being  set  at  liberty; 
and,  therefore,  that  it  ought  and  should  be  found  and  declared,  by  de- 
cree of  the  J-.ords  of  council  and  session,  that  the  inability  of  him,  defend- 
ant, to  pay  his  debts  was  not  owing  to  fraud,  but  to  misfortunes,  and  that 
it  being  so  found  and  declared,  he,  defendant,  should  be  ordained  to  be 
set  at  liberty  from  the  said  prison,  upon  his  granting  a  disposition  om- 
nium bonorum  upon  oath  in  favour  of  his  creditors  in  such  form  as  the 
Lords  should  direct,  and  all  judges,  &c.  of  his  Majesty's  law  should  be 
discharged  from  putting  any  diligence  into  execution  against  him,  and 
from  troubling,  molesting,  or  incarcerating  him  in  time  coming  for  pay- 
ment of  any  de!)ts  due  by  him  to  the  persons  named  in  the  petition,  and 
others;  and  that  the  said  Lords  of  council  and  session  ought  to  dispense 
with  his,  the  defendant's,  wearing  the  habit  directed  to  be  worn  by 
baifkrupts,  by  any  law  or  practice,  or  otherwise,  after  the  form  and 
tenour  of  tiic  laws  and  daily  practice  of  Scotland  used  and  observed  in 
the  like  cases  in  all  points:  whereupon  afterwards,  to  wit,  on  &c.,  ac- 
cording to  the  practice  of  the  court  of  the  Lords  of  council,  &c,,  it  was 
ordered  that  notice  should  be  given  to  the  creditors  named  in  the  pe- 
tition, and,  among  others,  to  the  jjlaintiff,  to  compear  before  the  Lords, 
&c. ,  at  Edinburgh,  or  wherever,  &c. ,  the  20th  of  June  1826,  to  answer 
at  the  instance  of  the  defendant,  in  respect  of  the  matters  contained  in 
the  petition.  Averment,  that  on,  &c,,  notice  was  given  to  the  creditors 
named  in  the  petition,  and  among  others  to  the  plaintiff,  to  compear  as 
aforesaid,  whereupon  afterwards,  to  wit,  on,  &.C.,  at,  &c.,  the  subject- 
matter  of  the  pefition  was  heard  before  the  Lords,  &c.,  and  certain 
creditors  of  defendant  (and  among  others  the  plaintiff)  appeared  by  coun- 
sel, and  were  heard  in  opjwsition  to  the  defendant  in  respect  of  the  pe- 
tition, whereupon  it  was  afterwards  adjudged  in  the  said  Court  that  the 
Lords,  &c. ,  found  the  defendant  entitled  to  the  benefit  of  the  process 
aforesaid,  upon  lodging  in  process  a  disposition  of  his  effects,  and  also 
upon  making  oath  in  the  terms  of  the  acts  of  sederunt,  whereupon  de- 
fendant, afterwards,  to  wit,  on,  &c.  lodged  in  process  a  disposition  of 
his  effects,  aiul  also  made  oath,  in  terms  of  the  acts  of  sederunt,  an<l 
thereupon  became  entitled  to  be  discharged,  and  was  then  discharged  ou? 


8  Barxewall  6i  Cress  WELL,  477.  271 

of  custody.  Averment,  that  from  tlie  time  of  the  imprisonniciU  to  the  time 
of  the  discharge  from  custody,  the  plaintiff  had  no  cause  of  action  or  de- 
mand whatsoever  against  the  defendant,  except  the  causes  of  action  in  the 
declaration  mentioned;  that  afterwards  certain  funds,  goods,  and  chattels 
of  defendant,  of  the  value  of  100/  ,  became  available,  and  might  have 
been  recovered  under  the  said  disposition  for  the  benefit  of  the  creditors 
of  defendant,  and  for  the  benefit,  among  others,  of  the  plaintiff;  that  all 
and  singular  the  proceedings  aforesaid  were  pursuant  to,  and  in  con- 
formity with,  the  laws  of  Scotland  aforesaid,  and  that,  according  to  those 
laws,  the  said  Lords,  &c.  were  competent  to  act  as  aforesaid  in  the  pre- 
mises, &c.,  whereby,  and  by  the  effect  of  the  aforesaid  laws,  he,  the  de- 
fendant, had  become  absolutely  discharged,  in  respect  of  his  person, 
lands,  goods,  and  chattels  from  the  several  causes  of  action  aforesaid, 
and  this,  &.c.  Replication,  that  the  causes  of  action  mentioned  in  the 
declaration  severally  accrued  to  the  plaintiff  within  the  kingdom  of  Eng- 
land, and  this,  &.c.      Demurrer  and  joinder. 

Barstow  in  support  of  the  demurrer,  cited  Smith  v.  Buchanan,  1 
East,  6. 

Akhrson  contra  was  stopped  by  the  Court. 

Bayley  J.  It  has  been  very  properly  conceded  that  a  discharge  in 
a  foreign  country  will  not  of  necessity  preclude  an  English  creditor  from 
suing  in  an  English  court,  in  respect  of  a  debt  contracted  in  England. 
It  has  been  decided  that  a  certificate  under  a  commission  of  bankruptcy 
issued  in  Ireland,  since  the  Union,  does  not  discharge  a  debt  contracted 
in  England,  Lewisx.  Owen,  4  B.  &  A.  654.  But  a  discharge  of  a  debt 
pursuant  to  the  provision  of  an  act  of  parliament  of  the  United  Kingdom, 
which  is  competent  to  legislate  for  every  part  of  the  kingdom,  and  to 
bind  the  rights  of  all  persons  residing  either  in  England  or  Scotland,  and 
which  purports  to  bind  subjects  in  England  and  Scotland,  operates  as  a 
discharge  in  both  countries.  In  Sidaway  v.  Hay,  3  B.  &.  C.  12,  this 
Court  decided  upon  that  principle  that  a  debt  contracted  by  a  trader 
residing  in  Scotland  was  barred  in  this  country  by  a  discharge  under  a 
sequestration  issued  in  conformity  to  the  statute  54  G.  3.  c.  157.  The 
defendant  in  this  case  was  not  discharged  pursuant  to  the  provisions  of 
that  act  of  parliament.  He  was  discharged  on  making  a  ccssio  bonorum, 
which,  by  the  law  of  Scotland,  operates  as  a  discharge  of  the  person  in 
respect  of  debts  contracted  in  Scotland.  The  court  of  session  in  Scot- 
land, prima  facie,  is  competent  only  to  bind  Scotch  subjects,  and  to  ad- 
judicate in  respect  of  debts  contracted  in  Scotland.  The  phiintiff  is  an 
English  subject,  and  sues  in  respect  of  a  debt  contracted  in  England. 
Prima  facie,  therefore,  he  is  not  bound  by  the  judgtncnt  of  a  court  in 
Scotland.  Hut  it  is  insisted  that  he  has  sought  relief  from  the  Scotch 
court;  that  he,  therefore,  by  implication  consented  to  be  bound  by  the 
law  of  Scotland,  and,  consequently,  that  he  is  barred  by  the  judgment 
of  that  court,  pronounced  according  to  that  law.  Hut  I  think  it  docs  not 
appear  upon  this  record  that  the  plaintiff  did  seek  relief  from  the  Scotch 
court.  The  plea  states  that  the  defend. mt,  being  incarcerated  in  the 
Tolhooth,  presented  to  the  Lords  of  session  a  |)Clition,  stating  that  the 
plaintiff,  among  others,  was  one  of  his  creditors,  and  that  the  <Ufeiidant 
had  offered  to  convey  liis  effects  to  his  creditors,  and  that  they  (including 
the  plaintiff)  had  refused  to  accept  such  conveyance;  and  then  the  pray- 
er was,  that  he,  the  defendant,  should  bo  set  at  liberty  upon  his  granting 
a  disposition  of  al!  his  goods  in  favour  of  his  creditors,  and  that  in  future 


272  riiii.Lii's  V.  Allan.  T.  T.  1828. 

lie  should  not  1)0  incorccrated  or  tiouhled  for  payment  of  any  debts  due 
lo  the  |)crson,s  named  in  tlic  j)elition.  The  object  of  the  j)elition,  there- 
fore, was,  that  he  should  be  free  from  restraint  in  Scotland  in  resj)cct  of 
those  debts.  The  plea  then  states,  that  it  was  ordered  that  notice  should 
be  given  to  the  creditors  named  in  the  petition,  and,  among  others, 
to  the  plaintilT,  to  comjjear.  The  object  of  that  notice  was  that  the 
creditors  should  have  an  opportunity  of  shewing  cause  why  the  prayer 
of  the  petitioner  should  not  be  granted.  It  then  avers  that  notice  was 
given  to  the  creditors,  and,  among  others,  to  the  plaintifl';  that  thcsubject- 
inatter  of  the  petition  was  heard,  that  the  j)laintiira|)peared  by  counsel, 
and  was  heard  in  opposition  to  the  defendant  in  respect  of  the  petition. 
It  has  been  insiste*.!  tliat  the  fact  of  the  plaintilf's  having  appeared  in  the 
Scotch  court,  and  tiiere  opposed  the  granting  of  the  prayer  of  tiie  pe- 
tition, distinguishes  this  case  from  thai  o(  Smilh  v.  Buchanan,  1  Kast, 
G,  but  I  tiiink  it  docs  not.  The  plea  does  not  shew  that  the  plaintiff 
<lesired  to  take  a  distributive  share  of  the  defendant's  property  (which 
lie  might  have  had  by  the  law  of  Scotland),  but  only  that  he  endeavoured 
to  prevent  the  defendant's  being  free  from  restraint  in  Scotland  in  re- 
spect of  his  debt.  One  part  of  the  prayer  of  the  petition  was  that  all 
judges  and  law  officers  might  be  restrained  from  molesting  the  defend- 
ant in  respect  of  his  debts.  But  for  that  provision  the  plaintiflf  might 
liave  sued  the  defendant  in  the  Scotch  courts  in  respect  of  the  debt  owing 
to  him.  By  opposing  the  defendant,  he  only  shewed  that  he  did  not 
wish  to  be  deprived  of  the  liberty  of  suing  him  in  the  Scotch  courts. 
He  may  have  insisted  in  that  court  that  the  defendant  was  a  fraudulent 
debtor.  There  was  no  consent,  therefore,  of  the  plaintiflf  to  be  bound  by 
the  judgment  of  the  Scotch  court.  If  he  had  asked  to  have  the  benefit 
of  the  Scotch  law,  and  to  receive  a  share  of  the  defendant's  property, 
there  might  have  been  ground  for  saying  that  he  had  consented  to  be- 
come bound  by  that  law  and  by  the  judgment  of  the  Scotch  court.  It 
seems  to  me  that  the  debt  is  a  subsisting  debt,  and  that  the  plaintiflf,  an 
English  creditor,  is  not  prevented  from  enforcing  payment  of  it  in  an 
Knglish  court  of  justice. 

HoLROYD  J.  This  case  falls  clearly  within  the  principle  of  the  de- 
cision in  Smith  v.  Buchanan,  unless  it  be  distinguishable  from  that 
case  on  the  ground  that  the  plaintiff  appeared  in  the  court  in  Scotland, 
and  opposed  the  discharge  of  the  defendant.  By  the  law  of  Scotland 
the  defendant  was  entitled  to  be  discharged  from  custody  in  respect  of 
this  debt,  on  condition  of  making  a  cessio  bonorum.  The  plaintiflf  is 
an  English  subject,  suing  for  a  debt  contracted  in  this  country,  and  is 
not  bound  by  the  Scotch  law.  It  is  said  that  he  has  consented  to  be 
bound  by  the  Scotch  law  by  reason  of  his  having  appeared  in  the  court 
in  Scotland,  and  opposed  the  defendant's  being  discharged  out  of  cus- 
tody. But  I  think  his  liaving  appeared  in  that  court  makes  no  diflfer- 
ence  in  this  case.  If  he  had  asked  relief  from  the  Scotch  court,  and 
sought  to  have  the  benefit  of  the  law  of  Scotland  by  taking  a  share  of 
ihe  defendant's  property,  that  might  have  made  a  diflference.  He  may 
have  appeared  in  the  Scotch  court  for  the  purpose  of  objecting  to  the 
jurisdiction;  and  if  so,  it  is  quite  clear  he  may  now  insist  that  their  judg- 
ment is  a  nullity,  in  the  saine  manner  as  a  party,  who  has  appeared  in 
the  spiritual  court,  may  insist  that  the  judgment  of  that  couit  is  void. 

LiTTLEDALE  J.  I  am  of  the  same  opinion.  It  is  admitted  that  the 
plea  could  not  be  supported,  unless  it  alleged  that  the  plaintiflf  appeared 


8  Barnewall  &  Cresswell,  477.  273 

in  the  court  in  Scotland  :  but  I  think  that  docs  not  make  any  difl'erence. 
If  the  plea  had  alleged  that  the  plaintiff  sought  to  avail  himself  of  the 
law  of  Scotland,  by  taking  a  distributive  share  of  the  defendant's  estate, 
the  case  then  might  have  been  different.  But  here  the  allegation  is,  that 
the  plaintiff  appeared  by  his  counsel,  and  was  heard  in  opposition  to  the 
defendant,  in  respect  of  the  petition.  He  may  have  opposed  the  prayer 
of  the  petition  on  the  ground  that  the  Scotch  court  had  no  jurisdiction, 
or  that  the  defendant  was  not  a  person  entitled,  by  the  law  of  Scotland, 
to  be  discharged  on  making  a  cessio  bonorum.  The  ground,  however, 
on  which  the  plaintiff  opposed  tiie  defendant  is  wholly  immaterial,  un- 
less he  sought  relief  by  availing  himself  of  the  Scotch  law  to  obtain  a 
distributive  share  of  the  defendant's  property.  The  judgment  of  the 
Court  must  be  for  the  plaintitf. 

Judgment  for  the  plaintiff. 


PAUL    and    Others    v.    ELIZABETH    NURSE    and   EDMUND 

NURSE.— p.  480. 

Covenant  against  the  assignee  of  the  lessee  for  non-payment  of  rent.  Plea,  that 
before  the  rent  Ijccame  due,  the  defendants  assigned  all  their  estate  and  inte- 
rest in  the  demised  premises  to  A.  B.  Replication,  that  in  and  by  the  inden- 
ture, the  lessee  for  himself,  his  executors,  administrators,  and  assigns,  cove- 
nanted that  he,  his  executors,  or  administrators  should  not  assign  the  premises 
tliereby  demised  without  the  consent  of  the  lessor,  and  that  no  consent  was 
given  :  Held,  upon  demurrer,  first,  that  the  replication  was  bad,  inasmuch  as 
the  covenant  of  the  lessee  not  to  assign  did  not  estop  the  assignee  from  setting 
up  the  assignment ;  and,  secondly,  that  the  action  being  founded  on  privity  of 
estate,  the  liability  of  the  defendant  ceased  as  soon  as  the  privity  of  estate  was 
destroyed. 

Declaration  stated  that  one  R.  Cheatle,  deceased,  before  the  time 
of  making  the  indenture  thereinafter  mentioned,  was  seised  in  his  de- 
mesne as  of  fee  of  the  tenements  with  the  appurtenants  thereinafter 
mentioned  to  have  been  demised,  to  wit,  at,  &c. ;  and  being  so  seised 
on  the  30th  of  April  1816,  at,  &.C.,  by  a  certain  indenture  then  made 
between  Cheatle  of  the  one  part,  and  one  Co])cland  of  the  other  part, 
Cheatle,  for  the  considerations  therein  mentioned,  granted  and  demised 
to  Copcland  certain-premises,  with  the  ajipurtcnants.  Habendum  from 
the  11th  October  1813,  for  the  term  of  twenty-one  years,  at  a  rent  of 
SO/.,  payable  half-yearly.  Covenants  by  Copcland,  for  payment  of 
rent.  Averment,  that  all  the  estate,  right,  title,  and  interest  of  Copc- 
land, by  assignment  vested  in  the  defendants,  whereby  they,  as  assignees 
as  aforesaid,  then  entered  upon  the  demised  premises,  with  the  appur- 
tenants, and  became  and  still  were  possessed  thereof,  for  the  residue  of 
the  term;  that  being  so  possessed,  and  the  r(;version  belonging  to  Chca- 
iIp,  he,  on  the  27th  .March  182.3,  by  will,  devised  the  reversion  to  the 
plaintiffs,  their  heirs,  &c.,  and  died  on  the  8th  September  1820.  Breach, 
non-payment  of  half  a  year's  rent,  due  the  11th  October  1827.  Plea, 
that,  before  the  rent  became  due,  the  defendants  assigned  all  their  estate, 
right,  title,  and  interest  in  the  demised  [)remtses  to  Edmund  Nurse,  the 
elder.  Replication,  that  in  and  by  the  indenture  of  lease  Cnpeland  for 
himself,  his  executors,  administrators,  and  assigns  covenanted  that  he, 
Cnpeland,  his  executors  or  administrators,  should  not  assign,  underlease, 
dispose  of,  or  grant  any  part  of  the   prfrni'^rs   thereby  demised,  to  any 

vol..   XV.  30 


274  Pace  v.  Newman.  T.  T.  1828. 

person,  uillioiit  the  consent  of  Clicatlc,  his  licirs,  ora.ssiii;ns;  lliat  neither 
Cheallc,  in  his  lifetime,  nor  the  plaintifl's,  since  his  death,  had  given 
any  such  consent.      General  demurrer. 

Kelly  for  the  plaintiffs,  referred  to  Dumpor^s  case,  4  Coke,  119; 
Doe  d.  Boscawen  v.  Bliss,  4  Taunt.  735. 

Bavlet  J.  This  action  being  founded  on  privity  of  estate,  the  ob- 
ligation of  the  defendants  to  perform  the  covenant  arose  only  from  their 
filling  the  particular  character  of  assignees  of  the  estate,  which  the 
lessee  had  under  the  lease.  As  soon,  therefore,  as  they  ceased  to  be  as- 
signees, their  obligation  to  perform  the  covenant  was  at  an  end.  The 
plaintiffs'  remedy  is  by  an  action  on  the  covenant  not  to  assign.  Be- 
sides, it  may  admit  of  some  doubt  whether  the  defendant  is  within  the 
covenant;  for  the  lessee  only  covenants  that  he,  his  executors  or  admin- 
istrators, will  not  assign.  The  judgment  of  the  Court  must  be  for  the 
defendant. 

Judgment  for  the  defendant,  {a) 

(o)  See  Doe  dem.  Chure  v.  Smith,  5  Taunt.  795. 


PAGE  V.  NEWMAN.— p.  489. 

A  suit  commenced  in  K.  B.  by  latitat,  may  be  well  continued  by  a  bill  of  Middle- 
sex, sued  out  by  the  plaintiff,  with  intent  to  implead  the  defendant  for  the 
same  causes  of  action. 

Declaration  on  a  promissory  note  of  the  defendant,  dated  the  18th 
of  April  1S14.  Plea,  that  the  causes  of  action  mentioned  in  the  de- 
claration did  not  accrue  within  six  years  next  before  the  exhibiting  the 
plaintiff's  bill.  Replication,  that  within  six  years  after  the  several  causes 
of  action  accrued  to  the  plaintiff,  to  wit,  on  the  30th  of  June  1819,  in 
the  59  G.  3.,  he,  plaintiff,  for  recovery  of  his  damages  sustained  by  him, 
by  reason  of  the  not  performing  the  several  promises  and  undertakings 
in  the  said  declaration  mentioned,  sued  out  a  latitat,  whereby,  (after  re- 
citing a  previous  bill  of  Middlesex  commanding  the  sheriff  of  that 
county  to  take  the  defendant  and  him  safely  keep,  so  that  he  might  have 
his  body  to  answer  the  plaintiff  in  a  plea  of  trespass,  and  also  to  a  bill 
of  the  plaintiff  to  be  exhibited  against  the  defendant  for  300/.,  upon 
promises,  and  a  return  thereto  of  non  est  inventus;)  the  King  com- 
manded the  sheriff  of  Kent  to  take  the  defendant,  &c.  to  answer  the 
plaintiff  in  the  plea,  and  the  bill  aforesaid.  It  then  set  out  a  return  of 
non  est  inventus,  and  the  non-appearance  of  the  defendant,  and  then 
stated  that  the  plaintiff  prayed  another  latitat  to  the  sheriff  of  Kent,  re- 
turnable on  Monday  next  after  eight  days  of  St.  Hilary,  for  the  defend- 
ant to  answer  in  the  plea  and  to  the  bill  aforesaid;  and  that  on  that  day 
in  the  court  of  King's  Bench  at  Westminster,  came  the  plaintiff,  by 
his  attorney  aforesaid,  and  offered  himself  against  the  defendant  in  the 
pica  and  bill  aforesaid;  and  the  sheriff  of  Kent  did  not  send  the  last- 
mentioned  writ,  nor  did  he  do  any  thing  thereupon,  nor  did  the  defend- 
ant come  or  appear  in  the  court  of  King's  Bench,  according  to  the  exi- 
gency of  the  said  writ.  The  replication,  after  stating  similar  continu- 
ances from  term  to  term  to  Easter  term  1826,  proceeded  thus: — Where- 
fore the  plaintiff,  for  recovery  of  his  damages  by  him  sustained  by  rca- 


8  Barxewall  &  CitESSWELL,  489.  275 

son  of  the  not  performing  of  the  said  promises  and  undertakings  in  the 
said  declaration  mentioned,  prayed  another  precept,  called  a  bill  of 
JNIiddlesex,  against  the  defendant  in  form  aforesaid,  and  it  was  granted 
to  him,  returnable  before  our  lord  the  now  King  at  Westminster,  on 
Friday  next  after  the  morrow  of  the  Holy  Trinity,  for  the  defendant 
to  answer  the  plaintifl'  in  the  plea  and  the  bill  aforesaid,  and  the  same 
day,  &c.  After  stating  the  appearance  of  the  plaintiff  and  defendant  it 
averred,  that  the  said  several  writs,  and  the  said  last  mentioned  precept 
respectively,  were  so  sued  and  prosecuted  by  the  plaintift'  against  the  de- 
fendant as  aforesaid,  with  intent  to  implead  the  defendant  upon  and  for 
the  said  several  causes  of  action  in  the  said  declaration  mentioned,  and 
to  cause  and  compel  the  defendant  to  appear  in  the  said  court  here,  in 
order  that  the  plaintiff  miglit,  upon  such  appearance,  exhibit  his  bill, 
and  declare  against  him,  defendant,  for  the  said  several  causes  of  action 
in  the  said  declaration  mentioned,  &c.  And  the  plaintiff  afterwards, 
in  Trinity  term  in  the  7  G.  4.,  exhibited  his  bill,  and  declared  thereon 
against  the  defendant,  to  wit,  at,  &c.  Averment,  that  the  said  several 
causes  of  action  did  accrue  to  the  plaintiff  within  six  years  before  the 
issuing  of  the  first-mentioned  writ,  in  manner  and  form,  &c.  Rejoinder, 
that  no  precept,  called  a  bill  of  Middlesex,  against  the  defendant  was 
sued  out  or  prosecuted  by  the  plaintiff,  previously  to  the  said  prayer  of 
the  plaintiff  of  another  precept  called  a  bill  of  Middlesex,  and  so  sued 
and  prosecuted  by  plaintiff  against  the  defendant,  as  in  the  replication 
was  mentioned.     And  this,  ike.      Demurrei*. 

Header  for  the  plaintiff,  cited  Co/es  v.  Sibsf/e,  Styles,  156;  Daveyy. 
Clinch,  I  Sid.  53;  Culliford  v.  Bhnidford,  Carth.  233;  Brown  v. 
Babington,  SLd.-Raym.  882;  Wood  v.  Newton,  1  Wils.  141;  Fos- 
ter V.  Bonner,  Covvp.  451;  Price  v.  Jackson,  1  M.  &  S,  442;  Kar- 
verv.  James,  Willes,  255;  Lord  Middteton  v.  Forbes,  Willes,  259  n. 
Comyn  contra. 

Bayley  J.  I  have  no  doubt  that  the  bill  of  Middlesex  was  in  this 
case  a  good  continuance  of  the  suit  which  had  been  commenced  by  lati- 
tat. It  has  been  decided,  that  a  latitat  is  a  good  commencement  of  a 
suit.  To  continue  a  suit,  the  process  by  which  the  party  is  ultimately 
brought  into  court,  must  be  of  the  same  description  as  that  which  was 
originally  sued  out.  A  bill  of  Middlesex  and  a  latitat  are  process  of  the 
same  kind.  The  court,  in  virtue  of  its  jurisdiction  in  tiie  county  where 
it  sit.M,  issues  against  parties  resident  in  that  county  a  bill  of  Middlesex. 
If  the  defendant  be  not  found  in  the  county  of  Middlesex,  the  court  is- 
sues a  hitilat  into  some  oIIut  county.  The  latitat  issues,  therefore, 
on  the  supposition  that  a  bill  of  Middlesex  has  previously  becui  issued, 
and  tli.il  tlic  defendant  has  not  been  foiuid  in  that  comity.  'I'lie  rci)Ii- 
cation  in  this  case  set  otit  a  latitat,  whereby  (after  reciting  that  a  bill  of 
Middlesex  had  issued,  whereby  the  sheriff  of  that  county  was  command- 
ed to  take  the  defendant,  &.c.  &c.  to  answer  the  |)lainii(f  in  a  plea  of  tres- 
pass, and  to  a  bill  to  be  exhibited  against  him,)  the  King  commanderl  the 
sheriff  of  Kent  to  take  the  defendant,  &c,,  to  answ<:r  the  plaint  iff  in  the  plea 
and  bill  aforosnid;  and  by  the  latitat  subsef|ucntly  issued  from  term  to  term, 
and  the  bill  of  Miildb^sox  issucij  in  Kastcrlerm  l.SJfJ,  the  defendant  is  call- 
ed upon  to  answer  the  plaintiff  in  the  plea  and  the  bill  aforesaid.  'I'he  last 
])rocess,  therefore,  issm-d  to  compel  the  defend;uit  to  answer  the  [)laintiff  in 
the  same  plea,  and  to  llin  same  bill,  which  he  was  called  upon  to  answer  by 
lli<:  l.tlital  which  wis  fii^i  bucl  out.      So  'lial,  upon  the  lace  of  the  piu- 


276  Doii  (1.  BuuNK  V.  Mautyn.  T.  T.  1828. 

cess  itself,  the  bill  of  Middlesex  would  rather  appear  to  have  Ijccn  issued 
in  the  same  suit.  But  the  |)laiiitiir  then  avers,  that  the  said  several  writs, 
and  the  said  last-mentioned  precept  respectively,  were  so  sued  out  hy 
the  plaintiir  against  the  defenchint  with  intent  to  implead  the  defendant 
upon  the  several  causes  of  action  in  the  declaration  mentioned.  It  must 
be  taken,  that  the  hill  of  Middlesex  and  the  latitat  were  issued  with  the 
intent  to  prosecute  the  same  causes  of  action.  The  defendant  hy  the 
rejoinder,  alleges,  that  no  bill  of  Middlesex  was  sued  out  by  the  plaintifl' 
beiore  that  which  issued  after  the  last  latitat.  But  it  having  been  de- 
cided, that  a  suit  may  be  well  commenced  by  a  latitat  without  a  previous 
bill  of  INliddlesex,  the  fact  stated  in  the  rejoinder  is  wholly  immaterial. 
The  rejoinder,  therefore,  is  no  answer  to  the  replication.  I  think  the 
replication  is  good.  A  suit  commenced  by  latitat  may  be  continued  by 
process  of  the  like  kind.  A  hill  of  Middlesex  and  a  latitat  are  processes 
of  the  same  kind;  for  they  are  frequently  issued  in  the  same  suit:  and 
one  instance  has  been  put  in  argument,  where  a  bill  of  Middlesex  would 
of  necessity  be  the  only  process  by  which  a  suit  commenced  by  latitat 
could  be  continued.  It  is  clear,  therefore,  that  a  bill  of  Middlesex  may 
be  a  good  continuance  of  such  a  suit.  And  as  it  appears  by  the  replica- 
tion that  it  was  sued  out  with  the  intent  to  implead  the  defendant  for  the 
same  causes  of  action  as  those  for  which  the  latitat  was  sued  out,  I  think 
that  in  this  case  it  was  a  good  continuance  of  the  suit.  I  am,  therefore, 
of  opinion,  that  the  suit  which  was  originally  commenced  by  latitat  was 
properly  continued  by  the  bill  of  Middlesex,  and,  consequently,  that  the 
plaintiff  is  entitled  to  the  judgment  of  the  Court. 

Judgment  for  the  plaintifT, 


HUBBARD  V.  WILKINSON.— p.  496. 

A  defendant  having  been  arrested,  paid  into  court  the  sum  indorsed  on  the  writ, 
together  with  20/.,  as  a  security  for  costs,  pursuant  to  the  statute  7  &  8  G.  4.  c. 
71.  s.  2.  The  Court,  on  the  application  of  tlie  defendant,  allowed  the  plaintiff 
.  to  take  out  of  court  a  given  jjortion  of  the  sum  paid  into  court,  and  unless  he 
consented  to  accept  thereof,  with  costs,  in  full  discharge  of  the  action,  ordered 
it  to  be  struck  out  of  the  declaration,  and  that  the  plaintiff  should  not  give  any 
evidence  at  the  trial  as  to  that  sum. 


1)0E  on  the  several  demises  of  CHARLES  PRIDEAUX  BRUNE 
and  EDWARD  COODE,  v.  WILLIAM  MARTYN  the  younger, 
p.  497. 

By  marriage  settlements  between  W.  M.  and  T.  M.,  son  and  heir  apparent  of 
W.  M.,  of  the  first  part;  J.  H.  and  Mary  H.  of  the  second  part;  and  L.  G. 
and  J.  n.,  trustees,  of  the  third  part;  \V.  M.and  T.  M.  l)argained  and  sold  to 
the  trustees  certain  lands  called  Niimisses  and  Sandry's  Fields,  and  other  lands 
called  Varwell,  then  in  possession  of  W.  M.  and  T.  M.,  to  hold  unto  the  trus- 
tees, their  heirs  and  assigns,  as  to  Sandry's  Fields  and  Ninnisses,  to  the  use  of 
W.  M.  for  life;  remainder  to  the  use  of  the  trustees  during  the  life  of  W.  M. 
upon  trust  to  preserve  contingent  remainders,  with  remainder  to  the  use  of 
the  said  T.  M.  for  life,  remainder  to  the  said  trustees  and  their  heirs  during 
the  life  of  T,  M.  upon  trust  to  preserve  contingent  remainders,  with  lemaindcr 
to  tin:  first  and  othf-r  suns  of  1".  M.  by  M.  H.  successively  in  tail  male,  with 
itmaind'.r  t'.the  use  of  the  right  heirs  male  of  '1".  M.  for  ever;  and  as  to  all 


8  Barnewall  &  Gresswell,  497.  277 

the  other  settled  premises  to  the  use  of  T.  M.  for  life,  with  remainder  to  the 
use  of  trustees,  their  heirs  and  assigns,  during  the  life  of  T.  M.,  in  trust  to 
preserve  contingent  remainders,  with  remainder  to  the  use  of  M.  H.  for  her 
life,  for  raising  out  of  the  rents  and  profits  an  annuity  of  25/.  per  annum,  and 
subject  thereto  to  the  use  of  the  first  and  other  sons  of  T.  M.  by  M.  H.  suc- 
cessively in  tail  male,  with  remainder  for  want  of  issue  male  by  T.  M.  on  the 
body  of  M.  H.  begotten  ;  or  if  such  issue  male  should  die  without  issue  male, 
and  T,  M.  should  have  any  daughter  or  daughters  by  M.  H.  at  the  time  of  his 
death,  then  that  the  trustees,  their  heirs  and  assigns,  should  stand  seised  of 
the  said  hereditaments  to  the  use  of  the  issue  female  of  T.  M.  by  M.  H.,  for 
raising  portions  as  therein  mentioned  to  such  daughter  and  daughters;  and  that 
until  twenty-one  the  trustees  and  their  heirs  should  out  of  the  rents  raise  such 
maintenance  of  such  daughter  and  daughters  as  to  the  trustees  should  seem 
meet,  and  after  raising  the  said  sums  for  the  maintenance  for  such  daughter  and 
daughters  as  aforesaid,  or  in  default  of  issue  female,  to  the  use  of  the  right 
heirs  male  of  T.  M.  for  ever:  Held, 

First,  that  the  last  words  were  words  of  limitation  and  not  of  purchase,  and  that 
T.  M.  took  the  ultimate  remainder  in  fee;  and, 

Secondly,  if  they  were  words  of  purchase  still  they  would  create  a  contingent 
remainder  during  the  life  of  T.  M.,  which  would  vest  immediately  upon  his 
death  in  his  heir,  who  might  devise  the  same. 

Thirdly,  that  by  the  limitation  as  to  the  Varwell  andCrugmere  Closes,  the  trus- 
tees took  an  estate  only  during  the  infancy  of  the  daughters;  and. 

Fourthly,  even  if  they  took  a  fee,  it  was  a  fee  determinable  when  the  portion 
should  have  been  raised ;  and  twenty  years  of  possession  adverse  to  their  claim 
having  occurred,  the  presumption  was,  that  the  right  of  the  trustees  had  been 
released  and  satisfied. 

VV.  M.  died  leaving  two  sons,  who  died  without  issue.  The  survivor  of  them 
devised  the  estate  to  his  wife  for  life,  remainder  to  all  and  every  the  children 
of  Richard  E.  and  M.  P.  Avho  should  be  living  at  the  time  of  his  wife's  death. 
There  were  living  at  her  death  nine  children  of  R.  E  and  M.  P.  Of  these, 
two  during  her  life,  and  while  their  estates  remained  contingent,  had  levied 
fines  sur  conusance  dc  droit  come  ceo  of  their  shares.  In  April  1824  A.  B. 
entered  upon  the  lands  comprised  in  the  marriage  settlement,  and  kept  pos- 
session, and  in  May  1824  all  the  children  of  R.  E.  and  M.  P.  by  lease  and  re- 
lease conveyed  the  lands  comprised  in  the  marriage  settlement  in  given  pro- 
portions to  a  purchaser :  Held,  that  the  children  of  R.  E.  and  M.  P.  might  con- 
vey tlieir  interests  without  having  first  made  any  entry  into  the  land,  although 
A.  H.  was  in  possession. 

Secondly,  as  to  the  shares  of  the  two  who  had  levied  fines  while  their  estates 
were  contingent,  that  their  interest  was  not  thereby  extinguished. 

Ejectme.vt  for  the  recovery  of  certain  lands  in  the  pari.sh  of  Pad- 
stow,  in  the  county  of  Cornwall.  At  the  trial  before  Burrovgh  J., 
at  the  Lent  assizes  for  that  county  in  1S25,  a  verdict  was  found  for 
the  plaintiffs,  subject  to  the  opinion  of  this  Court  on  the  following 
case: — 

By  indentures  of  lease  and  release,  dated  the  5th  and  nth  of  Novcm- 
Ijer  1722,  the  release  hein^  tripartite;,  and  made  between  William  IMar- 
tyn,  Gent,  and  Thomas  JNIarlyn,  (lent,  sun  and  ln.ir  apparent  of  the 
.said  \V.  iMartyn,  of  the  first  part,  Jenefer  Hooper,  widow,  and  Martha 
Hooper,  her  (laiijj;liter,  of  the  second  part,  and  Lawrence  Grovvden, 
Gent,  and  John  Hooper,  Gent,  of  the  third  part,  in  consideration  of  a 
marriage  then  intended  between  said  Thomas  Martyn,  and  said  Martha 
Hooper,  and  of  the  marriage  portion  of  Martha  Hooper,  and  for  se- 
curing to  her  a  comj)etcnt  jointure,  and  for  limiting  the  said  heredita- 
ments, thereinafter  mentioned;  and  in  consideration  of  lO.y.,  W.  Mar- 
tyn and  T.  Martyn  did  grant,  bargain,  sell,  alien  and  enfeoff,  re- 
mise, release,  ronvey,  senire  and  roidirni  unlo  the  said  L.  Growdeu 
and  John  Hooper  one  field  failed  Niinii.'-se-,   in    the  village  of  Trclof; 


278  Doe  d.  Buune  v.  Martyn.  T.  T.  1828. 

in  Pailstow,   two  fields  called  Sandry's  Fields,  lying  in  the  village  and 
fields  of  Crugmcre,   in  Pndstow,  and  divers  other  fields,  amongst  which 
were  some   called   the  Varwell  Closes  in  Crugmere,  in  Padstow,  all 
>vhich  said  premises  were  then  in  the  possession  of  the  said  W.  Martyn 
and  T.  Martyn,  or  one  of  them.     And  the  reversion,  &c.  and  all  the 
estate,  &c.    and  all  deeds,  &c.    to    hold  unto  L.  Growden  and  John 
Hooper,  their  heirs  and  assigns;  as  to  Sandry's  Fields  and  Ninnisses, 
to  the  use  of  the   said  W.  Martyn  for  life,   remainder  to  the  use  of  L. 
(irowden  and  John  Hooper,   and  their  heirs  during  the  life  of  said  W. 
INIartyn,   upon  trust  to  preserve  contingent  remainders,  with  remainder 
to  the  use  of  the  said  Thomas  Martyn  for  life,  remainder  to  the  use  of 
the  said  trustees  and  their  heirs  during  the  life  of  the  said  Thomas  Mar- 
tyn, upon  trust  to  preserve  contingent  remainders,   with  remainder  to 
the   use  of   the  first,  second,   third,  &c.    and    other  sons   of  the    said 
Thomas  Martyn,   by  the  said  Martha  Hooper  successively  in  tail  male, 
with  remainder  to  the  use  of  the  right  heirs  male  of  Thomas  Martyn 
for  ever.     And  as  to  all  other  of  the  said  settled  premises,  to  the  use  of 
Thomas  Martyn  for  life,  with  remainder  to  the   use  of  the  trustees, 
their  heirs,  and  assigns,  during  the  life  of  Thomas  Martyn,  in  trust  to 
preserve  contingent  remainders,  with  remainder  to  the  use  of  Martha 
Hooper  for  her  life,  for  raising  out  of  the  rents  and  profits  an  annuity 
of  251.  and  subject  thereto,   to  the  use  of  the  first,   second,   third,  and 
other  sons  of  Thomas  Martyn  by  Martha  Hooper  successively  in   tail 
mail,  with  remainder  for  want  of  male  issue  by  Thomas  Martyn  on  the 
body  of  Martha  Hooper,  or  if  such  issue  male  should  die  without  issue 
male,  and  Thomas  Martyn   should  have  any  daughter  or  daughters  on 
the  body  of  Martha  Hooper  lawfully  begotten  and  living  at  the  time  of 
his  death;  then  that  Lawrence  Growden  and  John  Hooper,   iheir  heirs 
and  assigns,  should  stand  and  be  seised  of  the  said  hereditaments  to  the 
use  and  behoof  of  the  issue  female  of  Thomas  Martyn  on  the  body  of 
Martha  Hooper,  for  raising  and  levying  out  of  the  rents,   issues,  and 
])rofits  thereof  such  sum  and  sums  uf  money  to   pay  and   satisfy  such 
portion  and  portions  to  and  with  such  daughter  and   daughters  at  such 
lime  and   times  as  are  hereinafter  mentioned,  that  is  to  say,  if  one 
daughter,   the  sum  of  GOO/.,  and  if  two  daughters,  to  each  of  them  the 
sum  of  400/.,  and  if  more  than  two  daughters,   the  sum  of  800/.  to  bo 
equally  divided   between  them  at  twenty-one;  but  if  it  should   happen 
that    the  said   sums    and   sum  aforesaid   could   not  be    advance<l    and 
risen    by   and  out  of   the    profits  of   the   said    hereditaments   at    the 
times  of   payment  thereof   as    aforesaid,    then    and    notwithstanding 
the    said    premises  should    stand    and   be    charged    with   the   payment 
of  the  portion   or  portions  aforesaid,    when   and   as  soon  after  "as  the 
same   could    be  advanced    and   raised    out   of   the    rents,    issues,    and 
profits  thereof.       And    that    until    twenty-one  the  trustees   and   their 
heirs,  and  the  survivor  of   them    and   his  heirs,    should,  out  of  the 
rents,  raise  such  maintenance  of  such  daughter  and  daughters  as  to  the 
said  trustees,  their  heirs,  and  assigns  should  seem  meet  and  convenient. 
Proviso,  that  if  such   daughters  should   marry  without  consent,  or  the 
said  Thomas  Martyn  should  by  deed  or  will   revoke  the  said  portions, 
the  same  portions  should  go  to  such  other  persons  as  the  said  Thomas 
Martyn  should  direct.     And  from  and  after  raising,  levying,  and  pay- 
ing of  tlie  sum  and  sums  of  money  as  aforesaid  to  and   for  the  main- 
tenance and  education  and  portion  to,  lor,  and  with  such  daughter  and 


8  Barnewall  &  CiiESSWELL,  497.  279 

Jaughters  as  aforesaid,  or  for  default  of  issue  female,  to  the  use  and 
behoof  of  the  right  heirs  male  of  the  said  Thomas  Martyn  for  ever, 
and  so  that  all  and  singular  the  thereby  granted  and  conveyed  premises, 
with  the  appurtenances,  should  go,  descend,  and  be  in  the  blood, 
name,  and  family  of  Thomas  Martyn  and  his  heirs  and  assigns  for 
ever. 

William  Martyn,  one  of  the  settlors,  died  in  the  year  1722,  and  Tho- 
mas Martyn,  the  other  settlor,  died  in  1740,  leaving  issue  two  sons, 
William,  his  eldest  son  and  heir,  and  Hooper.  William,  the  eldest  son, 
entered  into  the  estates  in  question,  and  died  without  issue,  in  1779, 
leaving  Hooper,  his  brother  and  heir,  and  he,  after  the  death  of  his  bro- 
ther William,  entered  into  the  premises  and  continued  in  possession  of 
them  till  1795,  when  he  died,  leaving  no  issue.  The  only  other  issue  of 
Thomas  Martyn,  the  settlor,  were  Martha  Martyn  and  Grace  Martyn. 
Martha  died  in  1793,  unmarried,  and  without  issue.  Grace  married 
James  Elliott,  who  died  in  17G1,  leaving  the  following  issue: — 1st,  Tho- 
mas Elliott ;  2d,  Richard  Elliott,  who  married  Agnes  Best ;  3d,  Martha 
Elliott,  who  married  Parnall.  Richard  Elliott  had  three  children:  1st, 
W.  M.  Elliott ;  2d,  Agnes  Elliott,  who  married  Joseph  Martin  ;  3d, 
Grace  Elliott.  Martha  Parnall  had  several  children:  1st,  William  Par- 
nall; 2d,  Andrew  Parnall;  3d,  John  Parnall;  4th,  Grace  Parnall,  who 
married  Samuel  Thomas;  5th,  Edward  Parnall;  6th,  Mary  Parnall.  On 
the  2  6th  September  1795,  Hooper  Martyn  made  his  will  in  writing,  duly 
executed  according  to  the  statute  of  frauds,  bearing  date  the  day  and  year 
last  aforesaid,  by  which  he  devised  all  the  premises  in  question  to  his 
wife  Peggy  (afterwards,  by  her  second  marriage,  called  Peggy  Hoblyn) 
for  life,  with  remainder  to  all  and  every  the  son  and  sons,  daughter  and 
daughters,  of  his  nephew  Richard  Elliott,  and  of  his  niece  Martha  Par- 
nall, who  should  be  living  at  the  time  of  the  decease  of  his  said  wife, 
share  and  share  alike,  as  tenants  in  common,  and  not  as  joint-tenants, 
and  to  their  heirs  and  assigns  for  ever.  Peggy  Hoblyn  died  12th  March 
1S24,  and  at  the  time  of  her  death  the  issue  of  Richard  Ellliott  and  Mar- 
tha Parnall  then  alive  and  entitled  (if  by  law  they  mij^ht  be  so  entitled) 
to  take  under  Hooper  Marlyn's  will,  were  the  several  persons  above  nam- 
ed. No  evidence  was  given  of  the  actual  raising  of  tlie  sums  directed  to 
be  raised  by  the  settlement  of  1722  for  tiie  benefit  of  the  female  issue, 
and  charged  on  part  of  the  premises  in  question,  but  on  the  death 
of  Hooper  Martyn,  his  widow  and  devisee  as  aforesaid  took  possession  of 
all  the  premises,  and  continued  in  the  enjoyment  of  them  from  that  time 
without  interruption,  except  as  hereinafter  mentioned.  For  sometime 
previously  to  Michaelmas  1S22,  one  Hawken  had  been  tenant,  to  Mr. 
and  Mrs.  Hoblyn,  of  the  closes  calhxl  Ninnisses  and  Saiidry's  I'^iclds,  but 
his  tenancy  ended  at  that  time;  and  shortly  before-  lie(|uittc(l  possession 
he  was  served  with  (he  following  notice,  signed  by  the  (Iffendanl's  father: 
—  **  Whereas  I  claim  to  be  owner  and  proprietor  of  all  those  fields  called 
Sanders  or  Sandry's  Fields,  and  Ninnisses  Park,  situate  within  the  parish 
of  Padstow,  in  the  county  of  Cornwall,  which  you  now  occupy  at  an  an- 
nual rent:  now  I  do  hercl)y  give  you  notice,  that  I  intend  to  institute  le- 
gal proceedings  for  the  recovery  thereof;  and  further,  that  you  arc  not 
to  pay  any  rent  which  now  is,  or  hereafter  may  accrue,  diir,  forthcsan)e 
to  any  person  or  persons  whomsoever,  without  my  knowlrtlge  and  con- 
sent. Dated  this  3d  day  of  June  1822."  Shortly  after  Hawken  had  quit- 
led  these  premises  the  defendant's  fathrr  went  to  all  the  closes,  claiming 


280  DoD  d.  BuuNE  v.  Martyn.  T.  T.  1828. 

to  enter  as  lawful  heir,  to  take  possession,  and  eut  a  turf,  in  the  several 
closes,  l)ii(  he  tlid  not  keep  or  continue  in  possession.  Mr.  Iloblyn  rc- 
ccivcil  the  rent  due  at  Michaelmas  1S22:  he  could  not  then  get  another 
tenant,  biif  he  afterwards  let  the  premi3cs  to  one  lletallick.  At  Michael- 
mas 1823  tlie  ilcfLMidant,  with  his  father,  went  again  to  the  several  closes, 
and  turned  out  the  cattle  then  therein;  and  in  April  1S24  they  went  again, 
and  began  to  plough  the  fields,  which  was  objected  to  on  the  part  of  Mr. 
I^rune,  but  the  defendant  persisted,  and  has  kept  possession  since  that 
time.  After  Michaelmas  1S24  the  defendant  paid  the  reeve  of  the  manor 
of  Trevose,  one  year's  chief  rent  for  Sandry's  Fields  and  the  VarvvelPs 
parcel  of  the  premises  in  question  due  to  the  said  manor. 

15y  indentures  of  lease  and  release,  bearing  date  the  fJth  and  7th  of 
May  1S2-J,  the  children  of  Richard  Elliott  and  Martha  Parnall  living  at 
the  lime  of  Peggy  Iloblyn's  death,  (the  husbands  of  the  married  female 
children  being  parties  to  the  deeds,)  conveyed  their  interest  to  the  lessors 
of  the  plaintiir.  These  deeds  recited  several  former  conveyances,  and, 
amongst  others,  deeds  of  lease  and  release,  and  a  fine  sur  conusance  de 
droit,  &c.  by  Joseph  Martyn  and  Agnes  his  wife,  formerly  Agnes  Elli- 
ott, unto  Edward  Coodc  and  his  heirs,  of  Michaelmas  term,  48  G.  3., 
and  lease  and  release  and  a  fine  sur  conusance  de  droit  comme  ceo  by 
Samuel  Thomas  and  Grace  his  wife,  formerly  Grace  Parnall,  to  the  said 
Edward  Coode,  of  Trinity  term,  54  G.  3. 

In  Trinity  term  1S24  a  fine  was  levied  in  pursuance  of  a  warrant  con- 
tained in  the  deed  of  May  lS24;and  the  third  proclamation  was  in  Hila- 
ry term  1S25. 

The  declaration  contained  two  demises  of  the  same  date,  viz.  the  1st 
of  September  1824,  the  first  by  C.  P.  Brune,  and  the  second  by  Edward 
Coode,  and  the  premises  sought  to  be  recovered  were  Ninnisses,  Sandry's 
Fields,  and  the  Wirwell  Closes  in  Crugmere.  This  case  was  argued  at 
the  sittings  in  banc,  after  last  Easter  term,  by 

Preslon  for  the  lessors  of  the  plaintiff,  who  cited  the  rule  in  Shelly's 
case,  1  Co.  93;  Lord  Osmlsfo7i's case,  3  Salk.  336.  II  Mod.  ISO; Daives 
V.  Ferrers,  2  P.  Wms.  1 ;  Helps  v.  Hereford,  2  R.  &  A.  242. 

Farrjuhnr  Fraser,  contra,  cited  Fearne's  Contin.  Rem.  148.  0th  ed. 
JraAer  v.  Snoiue,  Palmer,  359;  Lisle  v.  Gray,  2  Lev.  223;  Purefoy 
V.  Rogers,  2  Saund.  381;  Doe  v.  IVillnn,  2  B.  &  A.  84;  /)oe  v,  Pas- 
siyisrhcnji,  G  B.&.  C.  305;  Lampet's  case,  10  Co.  46.  et  ib.  note  (D);  Doe 
V.  Tomkhison,  2  M.  &  S.  165;  Buckler's  case,  2  Co.  56.  6th  resolution; 
//  cnle  V.  Lower,  Pollexf.  51;  Vick  v.  Edwards,  3  P.  Wms.  372;  Helps 
y.  Hereford,  2  B.  &  A.  242;  Davies  v.  Bush,  M'Cleland  &  Younge,  58; 
Tyrrel  v.  Marsh,  3  Bingh.  31;  Goodright  v.  Forrester,  8  East,  552; 
Co.  Lit.  49  a. ;  Butcher  v.  Butcher,  7  B.  &  C.  399. 

Preston  in  reply,  referred  to  Connden  v.  Gierke,  Hob.  29;  Jemmott 
V.  Conley,  1  Lev.  170;  Leake  v.  Robinson,  2  Mer.  363;  Jee  v.  AudleVn 
1  Cox,  324;  March,  66.  ^  ^ 

Cur.   adv.  vult. 

Baylky  J.  now  delivered  the  judgment  of  the  Court;  and  after  stat- 
mg  the  facts  of  the  case,  proceeded  as  follows:  The  first  question  in  this 
case  IS,  What  is  the  effect  of  the  limitation  to  the  use  of  the  right  heirs 
male  of  Thomas  Martin.?  whether  those  words  are  words  of  limitation 
or  words  of  purchase?  It  was  conceded,  and  rightly,  by  Mr.  Fraser,  that 
they  were  to  be  taken  as  words  of  limitation,  unless  a  contrary  intention 
^vas  manifc.<'t.      But  he  contended  that  a  contrarv  intention  was  manifest. 


S  Barnewall  &  Chesswell,  497.  281 

snd  th::t  the  limitations  looked  to  such  person  as  should  be  heir  male  of 
Thomas  JMartyn  at  the  time  the  preceding  estates  should  fail.  I  cannot 
see  any  such  contrary  intention.  Were  I  at  liberty  to  conjecture,  the 
opinion  I  should  form  would  be,  not  that  the  settlor  was  looking  to  any 
particular  individual,  or  meant  to  make  an  object  of  his  bounty  any  in- 
dividual who  at  a  distant  indefinite  time  might  fill  the  character  of  heir 
male,  but  that  he  meant  to  create  a  general  estate  in  tail  male  in  himself,  and 
that  he  unintentionally  omitted  the  words  to  shew  of  whose  body  they 
were  to  be  heirs  male.  The  consequence  of  this  would  be,  that  the^e 
would  be  words  of  limitation,  that  the  word  "male"  must  be  rejected, 
and  that  under  these  words  Thomas  took  immediately  the  ultimate  re- 
mainder in  fee. 

But  suppose  these  to  be  words  of  purchase,  would  it  bar  the  lessors  of 
the  plaintiff?  Upon  the  execution  of  the  deed  this  would  be  a  contingent 
remainder,  because  nemo  est  hasres  viventis,  and  during  the  life  of 
Thomas  Martyn,  no  one  could  be  his  heir  or  heir  male.  But  why  should 
it  not  vest  the  instant  Thomas  Martyn  died?  The  law  leans  to  the 
vesting  of  estates;  and  as  soon  as  a  person  comes  in  esse  who  fills  the 
character  to  which  a  given  remainder  looks,  that  remainder  vests,  unless 
there  is  something  to  shew  an  intention  that  it  should  not  then  vest.  Is 
there  any  thing  to  shew  such  an  intention  here?  The  limitation  is  not 
specially  to  the  then,  right  heirs  male  of  Thomas  Martyn,  or  to  such  per- 
sons as  shall  then  be  such  heirs  male,  but  generally,  to  the  right  heirs 
male  of  Thomas  Martyn.  As  soon,  then,  as  any  person  filled  that 
character,  and  answered  that  description,  that  remainder  vested  in  inter- 
est. Upon  the  death  of  Thomas  Martyn  in  1740,  the  remainder  vested 
in  William,  who  was  then  his  heir,  and  on  William's  death  in  1779,  the 
remainder  descended  in  fee  upon  Hooper,  and  he  had  therefore  power  to 
make  a  will. 

The  next  question  applies,  not  to  the  whole  estate,  but  to  that  pro- 
perty only  which  is  included  in  the  second  branch  of  the  settlement,  viz. 
the  Varwell  Closes  and  t!ie  property  in  Crugmere.  This  question  is,  whe- 
ther the  limitation  to  the  trustees  to  the  use  of  the  issues  female  of  Thomas 
Martyn  vests  the  whole  fee  in  the  trustees  so  as  to  prevent  the  persons 
who  claim  under  the  ultimate  remainder  from  having  any  claim  at  law. 
The  limitation  is,  that  for  want  of  issue  male  of  Thomas  Martyn  by 
Martha  Hooj)cr,  or  if  such  issue  should  die  without  issue  male,  anti 
Thomas  Martyn  should  have  a  daughter  or  daughters  by  Martha  Hooper 
jiving  at  his  death,  then  the  truiitees,  their  heirs  and  assigns,  should 
stand  seised  to  the  use  and  behoof  of  the  issue  female  f)f  Thomas  Martyn 
by  Martha  Hooper,  for  raising  out  of  the  rents,  issues,  and  profits 
of  the  estate,  fJOO/.  if  there  were  only  one  daughter,  and  800/.  if  thero 
were  more,  to  be  paid  to  them  at  twenty-one;  and  if  such  sum  could  not  ' 
be  raised  out  of  the  profits  by  the  time  of  payment,  then  the  premises 
should  stand  charged  with  those  sums  till  they  could  be  raised  out  of  the 
rents,  issues,  and  profits.  'I'ill  twenty-one  (i.  c.  until  the  daughters  at- 
tained twenty-one),  the  trustees  and  their  heirs  were  to  raise  such  main- 
tenance for  the  daughters  as  they  should  think  meet.  The  trustees, 
therefore,  have  no  express  power  given  thcui  over  the  rents  except 
<luring  the  infancy  of  the  daughters.  Upon  the  daughters  attaining 
twenty-one,  the  use  seems  executed  in  the  daughters,  and  it  is  to  them, 
and  to  them  only,  the  rontrol  appears  to  be  given  over  the  rents,  issues, 
and  profits.     Suppose,  however,  that  the  legal  estate  vested  in  the  trus- 

VOL.    XV.  ?y>') 


282  Dob  d.  Buune  v.  Martvn.  T.  T.  1828. 

tcc8,  niul  that  tlic  CO(l.  or  800/.  in  tlio  events  which  happened  were  to 
have  been  raised,  and  that  the  trustees  were  tlic  persons  to  have  raised 
them,  and  that  they  took  a  fee,  it  is  impossible  to  say  they  took  more 
than  a  limited  tec,  a  fee  which  must  determine  when  the  GOO/,  or  800/. 
should  have  been  raised,  and  the  ulterior  right  expectant  upon  the  deter- 
mination of  that  limited  fee  must  at  law  have  been  in  the  heir  of  the 
settlor,  not  by  way  of  limiting  a  fee  upon  a  fee,  but  because  it  was  part 
of  the  old  right;  and  upon  failure  of  the  estates  which  were  limited  by 
the  settlement  it  returned  back  to  the  settlor.  The  doctrine  applicable 
to  this  part  of  the  subject  is  to  be  found  in  Co.  Litt.  191  a.  n.  1.  Con- 
sidering, then,  that  no  claim  appears  to  have  been  made  by  the  trustees, 
that  nearly  twenty  years  of  a  possession  adverse  to  their  claim  had  oc- 
curred at  the  time  this  ejectment  was  brought,  and  that  much  more  than 
the  full  term  of  twenty  years'  adverse  possession  is  since  completed,  (for 
the  defendant's  possession  not  being  shewn  to  be  under  them,  or  on  their 
behalf,  must  be  taken  to  be  adverse  to  their  claim,)  and  that  up  to  the 
present  time  they  appear  to  have  made  no  claim,  can  the  defendant  avail 
himself  of  this  supposed  right  in  the  trustees?  The  presumj)tion  at  this 
distance  of  time  is,  either  that  it  was  released  or  satisfied;  and  we  think 
it  too  doubtful  and  too  distant  to  be  a  defence  in  the  mouth  of  a  stranger. 
The  next  point  I  shall  consider  is,  Whether  the  conveyance  of  the 
6th  and  7th  of  May  1824,  passed  any  interest  to  the  lessors  of  the  plain- 
tifl';  and  upon  that  I  cannot  bring  my  mind  to  doubt.  The  objection  is, 
that  the  remainder-men  (the  grantors)  had  not  entered  at  the  time  the 
deeds  were  executed,  and  that  the  defendant  had.  First,  was  an  entry 
by  the  remainder-men  necessary  ?  It  is  conceded,  that  in  ordinary 
cases  it  would  not  be.  But  it  is  said,  that  this  is  to  be  treated  not  as  an  or- 
dinary case,  because  the  defendant  had  entered.  There  is  no  authority 
to  shew  such  a  conveyance  to  be  inoperative.  In  Co.  Litt.  49  a.  it  is 
said,  ''If  the  feoffor  be  out  of  possession,  a  fine,  recovery,  indenture  of 
bargain  and  sale  enrolled,  or  other  conveyance,  does  not  avoid  an  estate 
by  wrong."  It  does  not  say  that  the  conveyance  is  void.  But  what 
estate  had  the  defendant  here  ?  The  remainder-men  were  entitled  to 
treat  him  as  having  an  estate  by  intrusion,  for  the  sake  of  the  remedy; 
but  it  does  not  lie  in  his  mouth,  as  against  them,  to  say  he  had  any 
estate.  What  are  the  facts  ?  On  the  12th  of  March  1824  Peggy  Marty n, 
the  tenant  for  life,  died.  Was  any  one  then  in  possession  ?  The  case 
docs  not  state  the  fact.  Did  any  of  the  remainder-men  enter,  or  any 
person  on  their  behalf?  The  case  as  to  that  is  silent.  Some  time  in 
April,  non  constat  when,  the  defendant  entered,  and  began  to  plough 
the  fields.  This  was  objected  to  on  the  part  of  Brune,  but  not  by  the 
persons  in  whom  the  legal  estate  was  vested.  But  did  Brune  know  it? 
Did  Coodeor  any  one  of  the  remainder-men  know  it?  Non  constat 
that  they  did;  and  on  the  7lh  of  May  the  conveyance  was  made.  Had 
the  sale  been  of  a  pretended  title  only,  the  case  would  have  been  within 
the  operation  of  the  32  H.  8.  c.  9.  But  to  bring  a  case  within  that  statute, 
the  seller  must  have  a  pretended  right  only,  and  the  information  must 
aver  that  it  is  a  pretended  right  only,  for  that  is  the  point  of  the  action, 
Rex  y .  Barnes,  Cro.  Car.  233.  1  Hawk.  c.  8G.  s.  10.  Dy.  74.  This 
was  a  sale  not  of  a  pretended  but  of  a  valid  title,  where  the  possession 
had  gone  with  that  title  till  within  two  months  of  the  sale,  and  there 
had  been  no  act  of  dispossession  (if  there  ever  was  one)  till  within  a  much 
shorter  period.  It  has  been  argued,  that  the  conduct  of  the  defendant 
amounted  to  what  the   law  considers  an  intrusion,  and  that  at  the  time 


8  Barnewall  &  Cresswell,  497.  283 

of  the  conveyance  of  May  1S24,  the  defendant  was  in 'the  land  as  an  in- 
truder. But  what  does  the  law  consider  an  intrusion  ?  Not  a  mere 
wronojful  entry  into  possession  (unless  the  rightful  owner  chooses  so  to 
consider  it),  but  a  wrongful  possession  of  the  freehold;  and  what  Lord 
Ellenborough  lays  down  in  fFi/liam  v.  Thomas,  12  East,  155,  as  to 
disseisin,  applies  also  to  the  case  of  intrusion,  both  equally  ousting  the 
right  owner,  not  from  the  possession  merely,  but  from  the  possession  of 
the  freehold.  He  there  says,  "  Disseisin  was  formerly  a  notorious  act, 
when  the  disseisor  put  himself  in  the  place  of  the  disseisee  as  tenant  of 
the  freehold,  and  performed  the  acts  of  the  freeholder,  and  appeared  in 
that  character  in  the  lords'  court."  But  what  act  of  notoriety  is  here 
stated  to  have  been  done  by  the  defendant  as  claiming  to  put  himself  in 
the  place  of  the  rightful  freeholder  ?  At  most,  he  was  only  in  posses- 
sion six  weeks.  It  appears  to  me,  that  he  had  no  such  estate  by  wrong 
as  to  prevent  the  remainder-men  from  making  a  valid  conveyance.        • 

The  last  objection  applies  to  two  shares  only,  those  of  Agnes  Martyn 
and  Grace  Thomas,  and  tiie  foundation  of  the  objection  is  this, — that 
before  Peggy  Martyn's  death  and  whilst  their  estates  were  contingent, 
tliey  levied  fines  sur  conusance  de  droit  come  ceo,  and  that  all  right  as  to 
their  shares  was  thereby  elfectually  extinguished  and  destroyed.  These 
fines  were  not  produced  in  evidence  at  the  time  of  the  trial,  and  do  not 
constitute  part  of  this  special  case;  but  as  they  are  stated  in  the  deeds  of 
6lh  and  7tli  May  1824,  we  are  bound  to  assume  there  were  such  fines; 
and  if  such  fines  had  the  effect  supposed,  those  deeds  are  upon  the  face 
of  them  bad  as  to  these  two  shares.  The  fines  are  described  in  the 
release,  as  stated  in  this  case,  not  as  fines  sur  concessit  (which  if  for  years 
only  would  have  worked  no  destruction  or  extinguishment),  but  the  one 
as  a  fine  sur  conusance  de  droit,  &c.  and  the  other  as  a  fine  sur  conusance 
de  droit  come  ceo.  Upon  the  question  as  to  the  effect  of  such  a  fine 
upon  a  contingent  remainder,  the  authorities  and  opinions  of  text  wri- 
ters are  contradictory.  The  effect  of  a  fine  in  fee  on  a  contingent  re- 
mainder is  considered  by  Mr.  Preston  in  the  first  volume  of  his  Treatise 
on  Conveyancing,  p.  209,  and  he  seems  to  think  that  the  fine  will  in  all 
cases  have  the  eUectof  destroying  the  contingent  remainder.  Mr.  Fcarne 
thinks  otherwise. 

A  contingent  remainder  cannot  he  passed  or  transferred  by  a  con- 
veyance at  law.  ]iut  in  equity  it  may.  In  fVhilficld  v.  Fawcetl,  1 
Ves.  391,  on  a  marriage  settlement,  a  rent  was  created  to  the  use  and  in- 
tent that  the  heirs  of  the  body  of  the  wife  and  their  heirs  should  receive 
Hurli  rent,  and  subject  thereto  the  land  was  limited  to  the  husband  and 
his  heirs.  There  were  two  sons  of  the  marriage,  and  tliey,  in  the  life 
of  the  father  and  mother,  sold  this  rent  to  the  plaintiff  without  fine. 
'I'he  estate  was  the  father's.  Lord  llardw'ickc  held  that  the  sons  had 
not  an  actual  possibility  at  the  time  tliL-y  sold;  the  rent  might  never 
arise,  or  if  it  did,  the  sons  migiitnot  be  lieirs  of  the  mother's  body  at  her 
death.  Nothing,  therefore,  passed  by  that  conveyance  in  |)oint  of  law, 
it  being  by  deed,  and  not  by  fine,  which,  had  it  been  levied  of  this  rent, 
and  they  had  survived  their  mother,  would  have  opf  rated  as  against  them 
by  estoj)pel,  binding  them  and  their  heirs.  In  lVrrj;hl  v.  IVrighl,  1 
Ves.  411,  testator  devised  in  fee  lo  his  two  daughters,  Init  that  if  cither 
ilied  unmarried,  his  son  Robert  slioidd  take  the  estate  in  fee,  paying  the 
other  daughter  500/.  Testator  dicil.  Kol)etf,  in  eonsitleralion  ot 
natural  lov,  coMvy'.-cl  tht  l.t:id  and  all  his  'jlarm  and  right  therein  Iw  hi;* 


284  DoL  d.  Brune  v.  Martyn.  T.  T.  1828. 

voiinpcr  son  {looi«;o  in  fee.  Robert  died.  One  daughter  died  unmar- 
ried. Hobcrt's  elder  sou  fded  a  l)ill,  olaimiiin;  the  estate  on  paying  the 
other  daughter  500/.  Tlie  question  was,  Whether  the  conveyance  to 
Geor'^e  was  a  bar  to  the  claim  of  the  elder  son;  and  Lord  Hardwicke 
held  it  was,  for  though  the  limitation  to  Robert  was  by  way  of  excutory 
devise,  and  therefore  a  possibility  only,  which  the  law  will  not  permit 
to  be  granted,  yet  it  may  be  disposed  of  in  equity  to  a  stranger,  and  the 
bill  \vas  dismissed  with  costs. 

But,  although  a  contingent  remainder  cannot  be  conveyed  at  law,  it 
may  be  extinguished:  and  the  question  is.  Whether  a  fine  in  fee  of  ne- 
cessity extinguishes  it.  It  ma}'  be  conceded  that  a  fine,  if  so  intended, 
will  have  that  eflect,  and  as  far  as  this  case  is  concerned,  that  such  shall 
prima  facie  be  taken  to  be  the  intention;  but  the  question  is.  Whether  it 
shall  so  enure  where  a  contrary  intention  is  apparent.  Mr.  Preston,  in 
hfs  Treatise  on  Conveyancing,  seems  to  think  it  shall.  I  do  not  cite 
this  book  as  an  authority,  though  from  the  learning,  research,  experience, 
and  discrimination  of  the  author,  it  is  extra-jiidicially  entitled  to  great 
weight;  but  I  refer  to  it  because  it  states  the  doctrine  concisely,  and  the 
reason  of  it,  and  gives  a  reference  to  all  the  authorities.  The  passage  to 
Avhich  I  refer  is  to  be  found  in  p.  209;  and  is  as  follows:  "A  persoa 
who  has  merely  a  right  of  action  or  of  entry,  or  a  contingent  remain- 
der, or  other  future  or  executory  interest,  which  does  not  give  a  vest- 
ed estate,  should  cautiously  avoid  levying  this  species  of  fine,  (i.  e.  a 
fine  sur  conusance  de  droit  come  ceo,)  unless  he  means  to  extinguish, 
his  interest;  for  as  rights  of  action,  &c.  fof  course  xnoXndin^  contingent 
remainders)  cannot  be  transferred,  the  conusee  in  the  fine  cannot  derive 
any  advantage  from  the  fine.  On  the  other  hand,  strangers  to  the  finCy 
that  is,  persons  not  parties  to  it,  may  avail  themselves  of  it,  to  preclude 
the  title  of  the  conusor,  and  a  party  will  not  be  allowed,  in  opposition 
to  his  own  fine,  to  assert  a  title  to  the  land.  The  consequence  is,  the 
fine  enures  to  the  benefit  of  the  persons  to  whom  the  right  might  have 
been  released,  exactly  the  same  as  if  the  fine  had  been  a  release."  The 
opinion  here  expressed  by  Mr.  Preston  is  at  variance  with  that  of  Mr. 
Fearne.  In  the  Essay  on  Contingent  Remainders,  p.  289,  he  says, 
<'That  a  contingent  estate  cannot  be  passed  or  transferred  by  a  convey- 
ance at  law,  before  the  contingency  happens,  otherwise  than  by  way  of 
estoppel  by  fine  (or  recovery),  appears  by  IVeale  v.  Lower,  and  Vick 
V.  Edw'irds.  In  the  seventh  edition  of  that  work  by  Mr.  Butler,  360", 
this  position  is  stated  in  a  note.  [A  contingent  remainder  may  before 
it  vests,  be  passed  by  way  of  estoppel,  so  as  to  bind  the  interest  which 
shall  afterwards  accrue  by  the  contingenc}'^,]  but  upon  this  head  see  Mr. 
Preston's  Treatise  on  Conveyancing.  The  part  witiiin  the  brackets  is 
in  the  text  of  Fearne,  and  it  is  introduced  in  the  note  as  the  legal  posi- 
tion established  by  the  section  to  which  it  applies.  In  the  same  edition, 
366,  it  is  said,  that  a  contingent  remainder  cannot  bo  passed  or  trans- 
ferred by  a  conveyance  at  law  before  the  contingency  happens,  other- 
wise than  by  way  of  estoppel  by  fine  or  by  recovery  where  the  contin- 
gent remainder-man  comes  in  by  voucher,  appears  by  Weale  v.  Lower 
and  Vick  v.  Edwards;  but  contingent  estates  it  seems  are  assignable  in 
equity.  In  the  edition  of  Gilbert  on  Uses,  by  Sugdfen,  p.  124,  there  is 
the  following  note  by  the  editor:  It  should  seem  that  it  may  still  be  con- 
sidered clear  that  a  fine  in  fee  of  a  contingent  estate  will  operate  to  pass 
il  to  the  conusee  by  estoppel. '^ 


8  BAiiNEwALL  &  Cresswell,  497.  285 

The  opinions  of  text  writers  being  so  much  at  variance,  it  becomes 
necessary  to  examine  the  authorities  on  which  they  severally  rely  in 
support  of  those  opinions.  JSIr.  Preston  relies  on  Weale  v.  //0«6'e;%  and 
upon  what  he  calls  the  sixth  resolution  in  Buckler's  case,  2  Co.  56  a. 
But  this  should  rather  be  called  an  extra-judicial  dictum;  for  it  was  not 
one  of  the  points  resolved,  nor  did  the  facts  of  the  case  raise  it.  It  is  as 
follows:  "Sixthly,  it  was  said  if  disseisee  levy  a  tine  to  a  stranger,  that 
in  this  case  the  disseisors  shall  retain  the  land  forever;  for  the  disseisee 
against  his  own  fine  cannot  claim  the  land,  and  the  conusee  cannot  enter; 
for  the  right  which  the  conusor  had  cannot  be  transferred  to  him;  but 
by  the  fine  the  right  is  extinct,  whereof  the  disseisor  shall  take  advan- 
tage. In  Weale  v.  Lower,  Pollexf.  54,  the  same  doctrine  is  held  by 
Lord  Hale;  but  the  case  there  in  judgment  did  not  fall  within  it.  There 
a  contingent  remainder-man  in  tail,  who  had  also  the  remainder  in  fee, 
levied  a  fine  to  the  use  of  J.  S.  for  500  years,  and  died  before  the  con- 
tingency happened  :  upon  his  death  the  remainder  in  fee  descended 
upon  his  heir,  and  whether  J.  S.  had  right  for  the  500  years  against  such 
heir  was  the  question.  Tliis  depended  upon  the  point  whether  the  fine 
destroyed  the  contingent  remainder;  and  it  was  held  that  it  did  not,  be- 
cause the  fine  was  for  years  only;  but  Hale  C.  J.  said,  had  the  fine  been 
levied  in  fee,  it  would  have  destroyed  the  contins;ent  nse,  barred  the 
heir,  and  enured  and  operated  to  the  benefit  of  the  possessor  (Fearne, 
366),  as  the  fine  of  the  disseisee  fo  a  stranger;  but  he  had  the  case  debated 
again.  Those  authorities  are  relied  upon  to  shew  that  a  fine  in  fee  de- 
stroys a  contingent  remainder;  but  there  are  authorities  the  other  way. 
March,  105,  pi.  180,  is  at  variance  with  the  dictum  in  Buckler's  case. 
(Tr.  17  Car.  1.)  The  case  is  as  follows:  "  Disseisee  levieth  a  fine;  by 
Reeve  and  Crawley  it  shall  not  give  right  to  the  disseisor,  because  this 
fine  shall  enure  merely  by  way  of  estoppel,  and  estoppels  bind  only 
privies  to  them,  and  not  a  stranger,  and  therefore  the  disseisor  shall  not 
take  benefit  of  it,  and  therefore  they  did  conceive  2  Co.  56  a.  to  bo  no 
law."  If  a  disseisin  be  unknown  to  disseisee,  a  fine  by  him  shall  not 
enure  to  the  benefit  of  the  disseisor.  In  Filzherbert  v.  Filzherbcrtj 
Cro.  Car.  484,  it  was  moved  if  disseisee,  not  knowing  of  the  disseisin, 
had  levied  a  fine  to  a  stranger,  whether  that  should  have  barred  his 
right,  and  enured  to  the  benefit  of  the  disseisor,  according  to  2  Co.  56  a., 
Buckler''s  case,  which  if  ailmitted  would  be  of  very  mischievous  conse- 
quence? But  herein  the  Court  delivered  no  opinion;  but  Bra?}iston 
C.  J.  and  myself  (6'roAT)  conceived  it  should  not  enure  to  (he  benefit  of 
the  disseisor,  but  to  the  use  of  the  conusor  himself;  for  otherwise  a  dis- 
ficisin  being  secret  may  be  the  cause  of  disinherison  of  any  one  who  in- 
tends to  levy  a  fine  for  his  own  benefit,  for  assurance  of  his  lands  uj)on 
hi.s  wife  and  children,  or  otherwise."  The  doctrine  whether  a  fine  by 
disseisee  shall  enure  to  the  benefit  of  the  disseisor  is  adverted  lo  and 
considered  questionable  in  Co.  Litt.  40a.  n.  4;  Goulds.  162;  1  Roll. 
Abr.  Estoppel  (E),  pi.  3,  and  fVillifi77is  v.  Thomas,  12  East,  141.  In 
note  320,  to  Co.  Lilt.  49  a.  n.  4,  Jiackler'»  case  is  refi'rred  to,  and  it 
is  said,  "fine  by  disseisee  exlingiiishes  his  right,  ;uid  shall  enure  to  (ho 
disseisor.  Hut  see  this  denied,  M.  13  Car.  IJ.  H.  (^rook,  n.  7;  Fitzher- 
l)cri\'i  case,  Hal.  MSS."  In  (iouldsborougb,  162,  Coke,  attorney-gene- 
ral, demanded  this  question  of  the  Court, — if  there  be  disseisor  and  dis- 
seisee, ant!  during  the  disseisin  the  disseisee,  when  he  has  nothing  but  a 
right,  levies  a  fine  to  a  stranger,  if  by  this  fine  the  right  of  disseisee  be 


28G  Duii  d.  Drune  v.  Martyn.  T.  T.  1828. 

^onc,  and  if  llic  disseisor  shall  take  advantage  thereof?  Pupluwi  and 
(iaicdy.     ^AS,  truly."     In  Roll.  Abr.  Estoppel  (E),  pi.  3,  this  is  laid 

down, "if  disseisee  suQcrs  recovery  to  the  use  of  D.,  this  shall  be  a 

good  recovery  by  tstoppel  to  bind  disseisee  and  his  heirs."  If  baron 
and  feme  be  tenants  in  special  tail,  husband  discontinues  and  dies,  and 
the  w  lie  levy  a  fine  without  entering,  the  fine  fortifies  the  discontinuance, 
and  the  wife  cannot  enter  to  be  remitted,  for  the  statute  32  H.  8.  only 
avoids  the  discontinuance  by  the  wife's  entry,  Moore's  case.  Palmer, 
365;  2  Roll.  312.  In  Wright  v.  Wright,  1  Ves.  412,  Lord  Hardwicke 
lays  it  down  that  in  law  an  heir  may  levy  a  fine  in  the  life  of  his  ances- 
tor, which  will  bind  by  estoppel  after  descent  to  him.  In  the  same  case 
Lord  Hiirc/u'icke  says,  "The  reasons  of  the  law's  not  allowing  such  a 
disposition  which  this  court  (a  court  of  equity)  will,  are  mostly  very 
refined,"  and  Lord  Cowper  says  in  Thomas  v.  Freeman,  2  Vernon, 
5Cy'3,  such  notions  would  not  have  prevailed  now.  In  Williams  v.  Tho- 
mas, whether  a  fine  by  disseisee  should  enure  to  the  use  of  the  disseisor 
was  raised  as  a  question  in  argument;  but  the  question  was  not  decided, 
because  the  court  thought  that  there  had  been  no  disseisin;  and  Lord 
Ellenborovgh  discusses  the  point  what  is  a  disseisin,  and  what  he  says 
as  to  disseisin  is  equally  applicable  to  a  case  of  intrusion  or  abatement. 
The  true  principle  seems  to  be  laid  down  in  The  Earl  of  Peterborough, 
v.  Bludworth,  1  Lev.  128.  There  in  ejectment  before  Bridgman  C. 
J.  it  appeared  that  disseisee  levied  a  fine,  and  declared  the  use  by  deed 
to  conusee.  Bridgman  held  this  should  not  enure  to  the  use  of  the  dis- 
seisor; but  had  no  use  been  declared,  it  should  have  enured  to  the  use 
of  the  disseisor,  and  should  have  extinguished  the  right  of  the  disseisee, 
and  this  was  intended  to  have  been  found  specially;  but  the  jury  gave 
their  verdict  at  large  against  the  direction  of  the  court.  Bridgman, 
therefore,  was  of  opinion,  that  if  no  use  had  been  declared,  the  fine  would 
have  enured  to  the  use  of  the  disseisor,  and  extinguish  the  right  of  the 
disseisee;  but  the  use  being  declared,  shewed  the  intent  that  it  should 
not  enure  to  the  use  of  the  disseisor.  And  this  agrees  with  Vick  v.  Ed- 
wards and  Davies  v.  Bush.  In  Vick  v.  Edivards,  3  P.  Wms.  372, 
lands  were  devised  to  two  trustees,  and  the  survivor  of  them,  and  the 
heirs  of  such  survivor,  in  trust  to  sell;  and  upon  its  being  objected  that 
the  parties  could  not  make  a  good  title,  because  the  fee-simple  was  not  in 
the  trustees,  but  was  limited  to  the  survivor,  and  it  was  uncertain  who 
would  be  the  survivor,  Lord  Talbot  held  that  the  trustees,  joining  in  a 
fine,  would  pass  a  good  title  to  purchaser  by  way  of  estoppel;  that  the 
fee  was  in  abeyance,  and  it  was  certain  that  one  of  the  two  trustees  must 
be  the  survivor,  and  entitled  to  this  future  interest,  consequently  his 
heirs  would  be  estopped  by  reason  of  the  fine  levied  by  their  ancestor,  to 
sny,  "partes  finis  nihil  habuerunt,"  although  he  that  levied  the  fine  had 
no  interest.  Lord  Talbot,  therefore  was  of  opinion  that  the  trustees  who 
had  a  contingent  remainder  might  transfer  that  remainder,  and  make  a 
good  title  by  the  operation  of  a  fine. 

In  Davies  \.  Bush,  1  M'Clelland  &  Younge,  5S,  A.  was  tenant  for 
life  under  a  settlement,  remainder  to  his  wife  for  life,  remainder  to  their 
children,  with  ultimate  remainder  to  the  survivor  of  them  in  fee  :  they 
mortgaged  in  fee  to  L.  and  R.,  and  levied  a  fine  to  the  use  of  the  mortga- 
gee and  his  lieirs  during  the  lives  of  A.  and  wife  and  the  survivor,  re- 
mainder to  tiic  uses  mentioned  in  the  settlement,  remainder  to  the  mort- 
c=«Koc  in  fee.   It  was  decided,  that  the  contingmt  remainder  in  the  sur- 


8  Barnewall  &  Cresswell,  497.  287 

rivor  was  not  destroyed  by  tlie  fine,  because  it  was  controlled  and  limit- 
ed by  the  deed  which  led  the  uses,  which  shewed  unequivocally  that  the 
parties  only  meant  to  give  the  mortgagee  a  security,  and  had  no  inten- 
tion to  affect  any  of  the  limitations  in  the  original  settlement;  but  that  the 
fine  uncontrolled  by  the  deed,  would  have  destroyed  them.  These  au- 
thorities shew,  that  a  fine  in  fee  will  not  extinguish  a  contingent  remain- 
der, when  a  contrary  intention  is  apparent. 

The  contrary  opinion  proceeds  on  the  doctrine  of  estoppel.  Co.  Litt. 
352  a.  shews,  that  every  estoppel  must  be  reciprocal  that  is  to  bind  both 
parties,  and  that  is  the  reason  that,  regularly,  a  stranger  shall  neither  take 
advantage  of,  nor  be  bound  by,  the  estoppel;  but  privies  in  blood,  as  the 
heir,  and  privies  in  estate,  as  the  feoffee,  lessee,  &c. ;  privies  in  law,  as 
the  lord  by  escheat,  tenant  by  the  curtesy,  tenant  in  dower,  the  incum- 
bent of  a  benefice,  and  others  that  come  in  under  by  act  in  law,  or  in  the 
post,  shall  be  bound  by  and  take  advantage  of  estoppels:  and  Coke,  in  his 
twenty-first  reading  on  fines,  says,  "  Estoppel  is  reciprocal  on  both  sides; 
for  he  that  shall  not  be  concluded  by  a  record  or  other  matter  of  estop- 
pel, shall  not  conclude  another  by  it;  and  yet,  in  our  books  the  king  es- 
tops the  successor  from  saying  that  M.  had  nothing  in  the  land,  by  rea- 
son that  M.  held  of  the  king,  and  levied  a  fine  to  his  predecessor  sur 
conusance  de  droit  come  ceo  quil  ad  de  son  don,  and  though  the  king 
were  a  stranger  to  it,  and  had  nothing  but  this  seigniory  out  of  the  land, 
yet  the  king  took  advantage  of  this  estoppel.  The  reason  for  this  seems 
to  be  the  prerogative  of  the  king,  whereof  I  shall  not  speak;  but  other- 
wise it  is  in  the  case  of  a  common  person,  as  22  Ed.  3.  17.  and  40  Ed. 
3.  30.  are  agreed.  See  41  Ed.  3.  by  Finch,  that  a  stranger  shall  be  con- 
cluded by  a  fine  levied  sur  conusance  de  droit  come  ceo  quil  ad  de  son 
don."  But  this  seems  a  mistake  in  Co.,  for  I  find  no  case  of  the  kind  ; 
and  in  40  Ed.  3.  30.,  where  it  was  argued  that  a  fine  should  not  bar,  be- 
cau.se  the  person  against  whom  it  was  urged  was  a  stranger  to  the  person 
who  levied  the  fine,  Finchdeii  says,  <' Certainly  he  may  well  counter- 
plead against  the  fine,  because  he  is  not  privy  to  the  fine.  At  the  end 
of  the  report  is  a  note  *a  stranger  to  a  fine,  or  other  matter  of  record, 
shall  not  i)C  estopped.'"  Concordat  An.  38  Ed.  3.  fo.  28.  12  Ed.  4.  13. 
per  Fairfax.  11  H.  4.  1.  82.  42Ed.  3.  fo.  20.  And  in  lirook.  Abr.  Es- 
toppel, 2 If),  it  is  said,  a  stranger  to  a  fine  shall  not  plead  it  for  estoppel. 

If  the  fines  by  Agnes  and  Oracc  destroyed  their  remainders  (it  being 
uncertain,  when  their  fines  were  levied,  whether  they  would  ever  be  en- 
titled to  any  thing  in  this  estate),  it  must  be  upon  technical  reasoning  and 
technical  grounds  only ;  and  let  us  see,  then,  whether  technical  reasoning 
and  technical  grounds,  as  well  as  .sound  sense  and  correct  legal  j)riiici- 
ples,  do  not  lead  to  a  contrary  conclusion.  Upon  the  death  of  Peggy 
Hoblyn,  the  only  possible  claimants  would  be  the  luir-ut-lawof  Hno[)er 
Martyn  (Thomas  Elliott)  or  Agnes  and  (Irace,  or  the  persons  claiminj^ 
under  their  fines.  The  heir-at-law  would  be  met  by  Hooper  Martyn's 
will,  because  that  gives  away  the  whole  estate  to  the  surviving  cliiidren 
of  Elliott  and  Parnall.  lie  must  then  rely  upon  the  fines  of  Agnes  and 
(Irace,  and  then  he  is  met  by  this  dilemma:  those  fines  cither  did  operate, 
or  they  did  not  ;  they  either  passed  the  rights  of  Agnes  and  (Irace,  or 
they  did  not.  If  the  fines  operated  and  passed  the  rights,  the  rights  are 
in  the  persons  claiming  under  those  fines;  if  they  did  not  operate  and  pass 
thf^  rights,  the  rights  still  remained  in  Agnes  antl  flracc.  To  extricate 
himself  from  this  dilemma,  the  heir  must  insi'»t  that  Agnes  and  Clrace 


288  I)i)K  tl.  liuuxE  V.  Maktyx.  T.  T.  1828. 

arc  estopped  from  saying  that  tlicir  fines  did  not  opernte,  and  thatnotliing 
passed,  l>iit  unless  he  is  estopped,  he  eannot  say  they  are  eslojiped,  he- 
i-aiise  rstoppels  are  reci|)rocal.  And  if  he  lie  estopped  from  saying  that 
the  fines  did  not  pass  the  right  to  llie  connsees,  the  persons  claiming  nn- 
«!t'r  the  fines  of  Agnes  and  Grace  are  entitled  against  him.  But  is  it  true 
tliat  Agnes  and  Grace  are  estopped  as  against  him  ?  A  fine  bars  by  es- 
toppel parties  and  privies,  and  parties  and  privies  may  avail  themselves 
of  such  estoppel:  but  can  a  stranger  insist  upon  it  ?  and  the  heir-at-law  is 
a  stranger  to  this  fine.  As  against  the  parties  claiming  under  their  fines, 
Agnes  and  (irace  may  be  estopped;  but  it  does  not  follow  that  they  are 
estopped  as  to  strangers;  and  Co.  Litt.  352.  is  an  authority  that  they  are 
not. 

The  heir-at-law,  therefore,  would,  as  it  seems  to  me,  be  barred  by  the 
subsisting  riglU  of  Agnes  and  Grace,  and  would  be  unable  to  resist  a 
claim  in  their  names.  Suppose  a  claim  to  have  been  made  upon  Peggy's 
death  in  the  names  of  Agnes  and  Grace,  could  that  have  been  resisted  by 
a  stranger  ?  According  to  the  true  slate  of  the  case,  the  Veritas  facli,  the 
right  would  have  been  in  them:  their  fines  had  not  passed  it  from  them. 
Had  their  claim  been  resisted  by  the  persons  claiming  under  the  fines, 
they  miglit  have  been  estopped  as  against  them;  but  their  claim  would 
have  been  defeated,  not  because  the  right  was  not  in  them,  but  because 
they  were  estopped  by  their  own  fines,  as  against  the  parties  and  privies 
to  those  fines,  from  saying  they  had  not  passed  away  the  right.  Upon  a 
resistance  to  their  claim  by  a  person  not  entitled  to  insist  upon  the  estop- 
pel, it  seems  to  me  their  claim  must  have  prevailed.  The  true  state  of 
the  law  upon  this  point  I  take  to  be  this, — that  a  fine  by  a  contingent  re- 
mainder-man passes  nothing,  but  leaves  the  right  as  it  found  it;  that  it  is, 
therefore,  no  bar  when  the  contingency  happens,  in  the  mouth  of  a 
stranger  to  that  fine,  against  a  claim  in  the  name  of  such  remainder-man; 
that  it  operates  by  estoppel,  and  by  estoppel  only,  and  that  parties  or  pri- 
vies may  avail  themselves  of  that  estoppel,  but  parties  or  privies  only. 
That  being  the  case,  the  lessors  of  the  plaintiffs  are  entitled  to  recover  the 
two-ninths  which  belong  to  Agnes  and  Grace,  as  well  as  the  remaining 
seven-ninths  of  the  estate. 

Poslea  to  the  plaintiff. 


GIBBS  V.  SAMUEL  STEAD  and  W.  REED— p.  528. 

The  statute  38  G.  3.  c.  5.  s.  9.  enacts,  that  the  collectors  of  the  land-tax  shall 
levy  and  collect  the  rates  assessed, according  to  the  intent  of  that  act;  and  they 
are  requh-ed  to  demand  all  sums  of  money  taxed  and  assessed  of  the  parties 
themselves,  as  the  same  shall  become  due,  if  they  can  be  found,  or  else  at  the 
place  of  their  last  abode,  or  upon  the  premises  charged  with  the  assessment. 
Sect.  17.  enacts,  that  if  any  person  shall  refuse  or  neglect  to  pay  any  sum  of 
money  whereat  he  shall  be  assessed  upon  demand  by  the  collector,  it  shall  be 
lawful  for  the  collector  to  distrain,  Sec.  A  collector  having  made  a  demand  of 
the  land-tax  upon  the  premises  charged  at  a  time  when  the  party  liable  to  pay 
was  absent  from  home,  and  not  u])on  the  party  himself,  and  distrained  imme- 
diately after  making  such  demand,  the  distress  was  held  to  be  unlawful;  for 
that  before  he  distrained  he  was  bound  to  allow  a  reasonable  time  to  elapse 
after  the  demand  made,  in  order  that  the  party  liable  to  pay  the  tax  might  have 
an  opportunity  of  complying  with  the  demand. 

By  sect.  2.,  the  sum  therein  mentioned  is  to  be  levied  within  the  year;  and  by 
»^ct   12  it  is  enacted,  that  the  fourth  part  of  that  sum,  for  the  first  quarterly 


8  Barnewall  &  Cress  WELL,  537.  289 

payment,  shall  be  levied  on  or  before  the  24th  day  of  June  1798;  that  the  same 
sum,  for  the  second  quarterly  payment,  shall  be  levied  before  the  29th  of 
September  1798;  the  like  sum,  for  the  third  quarterly  payment,  on  or  before 
the  25th  day  of  December  1798;  and  tlie  like  sum,  for  the  last  of  the  quar- 
terly payments,  on  or  before  the  2oth  day  of  March  1799.  Semble,  That  the 
sums  due  for  the  last  quarterly  payment  may  be  levied  by  the  collector  at  any 
time  during  the  current  quarter. 


CHARLES  BROOKE  v.  THOMAS  NOAKES— p.  537. 

In  an  action  founded  on  the  statute  11  G.  2.  c  19.  s.  3.  against  a  party  for  aid- 
ing and  assisting  the  tenant  in  the  fraudulent  removal  of  his  goods,  with  in- 
tent to  prevent  the  landlord  from  distraining  them,  it  is  incumbent  on  the  land- 
lord not  only  to  prove  that  the  defendant  assisted  the  tenant  in  such  fraudu- 
lent removal,  but  also  that  he  was  privy  to  the  fraudulent  intent  of  the  tenant. 

Semble,  That  the  statute  is  so  far  penal,  tliat  it  is  incumbent,  in  an  action  by  the 
landlord  against  a  third  party,  for  assisting  the  tenant  in  such  fraudulent  re- 
moval, to  bring  the  case  by  strict  proof  within  the  words  of  the  first  section. 

Declaration  in  debt  on  the  statute  11  G.  2.  c.  19.  stated,  that  on 
the  29th  September  1S22,  the  plaintiff  demised  to  one  G.  Meers  a 
messuage  or  tenement,  with  the  appurtenances,  and  also  certain  closes 
of  land  in  the  county  of  Kent,  habendum  from  year  to  year  at  a  yearly 
rent;  that  735/.  2s.  9d.  of  the  rent  was  in  arrear;  that  certain  cattle, 
goods,  and  chattels  of  Meers  being  upon  the  premises,  and  liable  to  be 
distrained  for  the  said  arrears  of  rent,  Meers  fraudulently  removed  and 
carried  away  the  cattle,  &c.  from  off  the  demised  premises,  with  intent 
to  prevent  the  plaintiff  from  distraining  the  same  for  the  rent  aforesaid; 
and  that  the  defendant  unlawfully  and  knowingly  aided  and  assisted 
Meers  in  the  said  fraudulent  carrying  away  and  removing  of  the  said 
cattle,  &c.,  and  in  keeping  and  continuing  the  said  cattle,  &c.  so  con- 
veyed away  and  removed  away  as  aforesaid,  with  intent  to  prevent  the 
same  from  being  distrained  for  the  said  rent  so  being  due,  payable,  and 
in  arrear,  contrary  to  the  statute.  Averment,  that  the  cattle  were  of 
the  value  of  1000/.,  whercl)y  and  by  force  of  the  statute  an  action  had 
accrued  to  the  plaintiff  to  demand, from  the  defendant  2000/.,  being 
double  the  value  of  the  said  cattle,  &c.  Plea,  nil  debet.  At  the  trial 
before  linrrom^h  J.,  at  the  spring  assizes  for  the  county  of  Kent  1S28, 
it  was  proved  that  Meers  was  tenant  to  the  plaintiff  of  the  premises 
mentioned  in  the  declaration,  and  that  the  rent  was  in  arrear;  that  in 
August  lS2n,  the  rent  charged  in  tiic  declaration  was  due  to  the  plaintiff 
from  Meers,  that  he  then  had  upon  the  farm  five  cows  (which  were 
usually  milked  by  his  wife),  and  u[)war;Is  of  200  sheep.  On  Saturday, 
the  2d  of  Septemijcr,  the  plaintiff  called  on  Meors,  and  pressed  him 
for  payment  f»f  the  rent.  Meers  on  that  occasion  said  thai  the  defend- 
ant would  take  his  slock  at  a  fair  valualioii.  The  defendant's  farm  was 
at  a  distance  of  two  miles  from  that  of  iM(;ers.  On  Siinilay,  the  3d  of 
September,  the  cows,  sheep,  and  goods  of  Meers  were  removed  from 
his  farm.  The  cows  were  driven  by  one  Rickwood,  who  married  the 
defendant's  sister,  and  lived  upon  his  farm  with  him.  The  marks  on 
Meers's  sheep  were  O.  M. ;  but  after  they  were  removed  to  the  defend- 
ant's premises,  they  were  marktMl  T.  N.  On  the  8th  of  Sfptcmbcr  the 
wife  of  Meers  was  seen  milking  his  cows  upon  the  defendant's  pre- 
mises.    The  learned  .Fudgf  told   the  jury,  that  ihero  was  decisive  cvi- 

voL.  XV.  37 


ocK>  (iiM  rii.Li)  i\  Vaukeu.  T.  T.  1828. 

denoc  to  hl.cw  that  Mecrs  li;ul  Iravululcntly  removed  liis  stock  and  gootls 
with  intent  to  prevent  the  laiuUord  iVom  distraining  the  same;  but  that 
it  was  incunihcnt  on  the  plaintilV  to  prove  that  the  defendant  aided  and 
assisted  ISIccrs  with  that  intent.  There  was  no  evidence  of  any  act 
done  by  the  defendant  with  that  intent.  It  was  not  even  proved  that 
he  had  ever  seen  Mcers's  cattle  upon  his  premises;  nor  was  there  any 
evidence  that  he  knew  that  the  cattle  had  been  removed  to  his  premises 
for  the  purpose  of  preventing  the  landlord  from  distraining  them.  The 
jury  having  found  a  verdict  for  the  defendant,  a  rule  nisi  was  obtained 
for  a  new  trial,  upon  the  ground  that  the  verdict  was  against  evidence. 
Lister  y.  Brown,  3  D.  &  R.  501,  and  Stanlei/ v.  Wharton,  9  Price, 
301,  were  cited. 

Thesiger  now  shewed  cause,  and  referred  to  Bach  v.  Meats,  5  M. 
&  S.  200;  Lister  v.  Brown,  3  D.  &  R.  501.  Carr.  &  Payne,  N.  P.  C. 
121;  Stanley  \.  Wharton,  9  Price,  301.    10  Price,  138. 

Bolland  and  C.  Law  contra,  cited  Woodgate  v.  Knatchbull,  2  T. 
R.  148. 

Bayley  J.  I  think  that  the  verdict  in  this  case  was  right.  The 
statute  11  G.  2.  c.  9.  s.  3.  is  remedial  as  well  as  penal.  It  is  remedial 
so  far  as  it  enlarges  the  remedy  which  the  landlord  had  against  his  te- 
nant; but  it  is  so  far  penal  that  the  landlord  who  seeks  to  visit  a  third 
party  with  the  penal  consequences  of  the  act,  must  bring  the  case,  by 
strict  proof,  within  the  words  of  the  enacting  clause.  It  ought  to  have 
been  proved,  therefore,  not  only  that  the  defendant  assisted  in  the  re- 
moval or  concealment  of  the  goods,  but  that  he  gave  assistance  with  the 
intent  to  prevent  the  landlord  from  distraining.  Now  here  there  was 
no  evidence  which  ought  to  have  satisfied  the  jury  that  the  defendant 
assisted  in  the  removal  of  the  cattle.  If  the  fact  were  so,  it  might 
have  been  proved  by  Rickwood;  but  the  plaintiff  did  not  call  him.  But, 
independently  of  that,  I  think  that  the  defendant  ought  not  to  be  visited 
with  the  penal  consequences  of  tliis  act  of  parliament,  unless  it  be  dis- 
tinctly shewn  that  he  was  privy  to  the  fraudulent  intent  with  which  the 
tenant's  cattle  were  removed.  Assuming,  therefore,  that  the  defendant 
assisted  in  the  removal  or  concealment  of  the  property,  there  was  no 
evidence  that  he  did  it  with  the  fraudulent  intent  to  prevent  the  land- 
lord from  distraining.  Upon  this  evidence  the  verdict  was  properly 
found  for  the  defendant.  The  rule  for  a  new  trial  must,  therefore,  be 
discharged. 

HoLROYD  and  riiTTLEDAi.E  Js.  concurpcd. 

Rub'  discharged. 


rilATFlELI)  V.  PARKER  and  COTTERELL.— p.  543. 

Trespass  for  mesne  profits.  Plea,  a  judgment  recovered  by  defendant  in  1822 
against  A.;  an  eleu;it  sued  out  thereon;  an  inquisition  lield,  whereby  it  was 
found  that  A.,  at  the  time  when  the  judgment  was  recovered,  was  seised  for 
life  of  (inter  alia)  the  premises  mentioned  in  the  declaration,  and  that  the  she- 
riff delivered  those  premises  to  the  defendant.  Replication,  that  in  1820,  A., 
by  indenture,  bargained  and  sold,  inter  alia,  the  premises  mentioned  in  the 
declaration  to  the  plaintiff:  tliat  he  entered  and  continued  in  possession  until 
the  committing  of  the  trespasses.  The  defendant  craved  oyer  of  the  inden- 
ture; and  it  thereby  appeared,  that  for  the  purpose  of  securing  an  annuity  to 
B.,  A.  in  1«19  had  conveyed  the  premises  in  the  declaration    mentioned  to  B. 


8  Barnewall  &  Cresswell,  543.  291 

for  100  years,  and  that  subject  thereto  he  conveyed  them  to  the  plaintiff  for 
better  securing  a  second  annuity  granted  by  the  deed.  Upon  demurrer,  the 
replication  was  held  to  be  good,  inasmuch  as  it  shewed  that  the  plaintiff  was 
in  possession  at  the  time  when  the  trespass  was  committed;  that  A.  had  no 
interest  in  the  premises  at  the  time  when  the  judgment  was  obtained  against 
him ;  that  the  defendant,  consequently,  could  derive  no  title  from  him,  and  was 
a  wrongdoer. 

Trespass  for  breaking  and  entering  the  manors  of  Budbrooke  and 
Keckthorne,  and  ten  messuages,  &.c.  in  the  county  of  Warwick,  and 
ejecting  and  expelling  the  plaintiff  from  his  possession  and  occupa- 
tion thereof,  and  keeping  possession  and  taking  the  issues  and  profits. 
Plea,  as  to  entering  the  tenements  in  the  declaration  mentioned,  and  eject- 
ing, expelling,  and  amoving  the  plaintiff  from  his  possession  of  a  moiety 
of  the  said  tenements;  that  Parker,  in  Hilary  term  1822,  recovered  a 
judgment  in  the  King's  Bench  against  the  Right  Honourable  John  Eve- 
lyn Pierrepoint  Dormer,  Lord  Dormer,  for  400/.;  and  that  the  defendant 
Parker,  for  obtaining  execution  of  the  said  judgment,  sued  out  of  the 
King's  Bench  an  elegit  upon  the  judgment,  directed  to  the  sheriff  of 
Warwickshire;  that  by  an  inquisition  held  on,  &c. ,  at,  &c.,  it  was  found 
that  Lord  Dormer  was  seised  in  his  demesne  for  his  life  of  (inter  alia)  the 
premises  in  the  declaration  mentioned,  which,  together  with  other  land 
in  the  inquisition  mentioned,  were  a  moiety  of  the  lands  of  the  said 
John  E.  P.  Lord  Dormer,  in  the  sheriff's  bailiwick,  which  said 
moiety  the  sheriff  caused  to  be  delivered  to  the  defendant  Parker,  to 
holtl  as  his  free  tenements.  The  plea  then  stated,  that  in  due  execu- 
tion of  the  writ  sued  out  by  Parker,  the  other  defendant,  Cottereli,  in 
aid  and  assistance  of  the  sheriff,  and  as  his  bailiff,  and  by  his  command, 
on  tfie  said  13th  of  June  1823,  entered  the  tenements  in  the  declara- 
tion mentioned,  and  ejected  and  expelled  the  phiintifl",  and  put  Parker 
into,  and  Parker  accordingly  took  possession  of  a  moiety  thereof,  the 
same  being  part  of  the  tenements  in  the  inquisition  mentioned,  and  kept 
and  continued  the  ])laintiff  .so  expelled,  &ic.  as  was  lawful  for  the  cause 
aforesaid.  Replication,  tliat  the  said  Lord  Dormer  being  ?cised  in  his 
(leniesne  for  his  life  of  and  in  the  tenements,  with  the  appurtenances  in 
the  declaration  mentioned,  before  the  day  of  giving  judgment  in  the 
plea  mentioned,  to  wit,  on  the  14th  of  March  1820,  by  an  indenture 
then  made  between  the  said  Lord  Dormer  of  the  first  part,  ^V.  S.  and 
J.  C.  of  the  second  pari,  .ind  the  jjlaintilf  of  the  thin!  part,  gianlcd, 
bargained,  sold,  and  demised  to  the  plaintiff,  hi.s  executors,  &c.  amongst 
other  things  the  [iremi.scs  mentioiKHJ  in  tin?  declaration;  habendum  to 
the  plaintiff,  his  executors.  &.c.  fur  the  term  of  J 00  years  from  the  day 
next  before  the  date  of  the  indenture;  that  the  plaintiff  entered  and  be- 
«:amc  possessed  for  the  said  term,  and  continued  so  possessed  thereof 
until  the  defendants  entered  under  colour  of  the  elegit. 

The  defendants  first  craved  oyer  of  the  indenture  (which  was  set 
out),  and  by  that  indenture  it  af)poareil  that  it  w;is  made  between 
the  Higlit  Honourable  Kvelvn  Pierrrpoint,  Lord  Dormer,  Baion 
Dormer,  of  Wenze,  in  the  county  of  iiucl<int!,li.iin,  of  the  fir-^t  part, 
VV.  S.  of  St.  Andrew's  Hill,  I^ondon,  and  J.  ("uoijc,  of  Osbornc- 
^tr^et,  in  the  county  of  Middlesex,  two  of  the  directors  of  a  society 
called  the  Pelican  [.ile  Iiisui.iixt  ("oiiipanv,  and  acting  on  the  part 
of  the  same  society,  oi  ibe  sncnnd  p.tii,  ;iiiil  Charles  (-'hatfield  (the 
plaintiff),  of  Angelmurt,  of  the  lliii(i  jmiI.  It  llieii  recited,  that  by 
an    indenture  of  the  l>^th  June  I'-l'',    iiiad<-   brfwcr-n   the  .said  Evelyn 


292  CiiATHLLij  I'.  I'arklk.  T.  T.  1828. 

Pierrepoinf,   Lord  Dormer,  of  the  fust  part;  W.  S.  and  J.  C.  of  Ihe 
second    pari;    and  T.   Dawes  of   the    third  part,    in    consideration  of 
14,!)PS/.  paid  to  the  said  E.  P.  Lord  Dormer  out  of  the  funds,  and  on 
belialf  of  the  society  or  j)artnersliip  in  manner  therein  mentioned,  he  the 
said  K.  P.  Jjord  Dormer  did  grant,  &c.  unto  the  said  VV.  S.  and  J.  C, 
tlicir  executors,  &.c.  an  annuity  of  1725/.  to  be  paid  and  payable  fornine- 
ty-nine  years,  to  be  computed  from  the  day  next  before  the  date  of  the 
indenture,  and  thenceforth  if  the  said  E.  P.  Lord  Dormer  should  so  long 
live,  to  be  charged  and  chargeable  upon,  and  payable  out  of  (inter  alia) 
the  premises  mentioned  in  the  declaration,  habendum  for  ninety-nine 
years,  and  thenceforth  if  the  said  E.  P,  Lord  Dormer  should  so  long  live, 
and  that  tlie  said  E.  P.   Lord  Dormer  did  grant,  bargain,  sell,  and  de- 
mise unto  the  said  T.  Dawes,  his  executors,  &c.  (inter  alia)  the  pre- 
mises mentioned  in  the  declaration,  habendum  to  Dawes,  his  executors, 
&c.  for  100  years,  to  be  computed  from  the  day  next  before  the  date  of 
the  said  indenture,  if  the  said  E.  P.  Lord  Dormer  should  so  long  live,  in 
trust  to  pay  the  said  annuity  out  of  the  rents  and  profits,  &c.     It  then  re- 
cited, that  the  said  E.  P.  Lord  Dormer  had  contracted  and  agreed  with 
tlie  said  W.  S.  and  J.  C.  for  the  absolute  sale  to  the  said  W.  S,  and  J.  C, 
as  two  of  the  directors  of  the  said  Pelican  Life  Insurance  Company,  on 
behalf  of  the  company,  of  an  annuity  of  800/.  to  be  paid  to  them  W.  S. 
and  J.  C,  their  executors,  &c.  for  ninety-nine  years,  to  be  computed 
from  the  day  next  before  the  date  of  the  indenture  of  the  14th  March 
1820,  if  the  said  E.  P.  Lord  Dormer  should  so  long  live,  at  and  for  6998/., 
and  that  in  pursuance  of  the  said  agreement,  they  W.  S.  and  J.  C.  had 
paid  that  sum  to  the  said  E.  P.  Lord  Dormer;  and  that  upon  the  treaty 
for  the  purchase  of  the  said  annuity  of  SOO/.,  it  was  agreed  that  the  an- 
nuity of  1725/,,  and  all  powers,  remedies,  and  trusts  for  securing  the 
same,  should   be  ratified  and  confirmed,  and  subject  thereto,  that  the 
said  annuity  of  800/.   should  be  charged  upon  (inter  alia)  the  premises 
mentioned  in  the  ileciaration.  "^I'he  indenture  then  witnessed,  that  in  pur- 
suance of  that  agreement,  he  the  said  E.  P.  Lord  Dormer  had  ratified 
and  confirmed  the  annuity  of  1725/.   granted  by  the  indenture  of  the 
18th  June  1819,  and  that  in  pursuance  and  further  performance  of  the 
said  agreement,  and  in  consideration  of  the  sum  of  6998/.  paid  to  him  by 
W.  S.  and  J.   C.  as  thereinbefore  mentioned,  he  the  said  E.  P.   Lord 
Dormer  had  granted,  bargained,  sold,  and  confirmed  to  W.  S.  and  J.  C. 
their  heirs,  executors,  &c.  an  annuity  of  800/.  to  be  paid  and  payablefor 
ninety-nine  years,  if  tlie  said  E.  P.  Lord  Dormer  should  so  long  live,  to 
be  charged  and  chargeable  upon  the  lands  (inter  alia)  in  the  declaration 
mentioned.      The  indenture  tlien  further  witnessed,  that  in  consideration 
of  6998/.  paid  to  the  said  E.  P.  Lord  Dormer  as  thereinbefore  mention- 
ed, and  for  the  further  and  better  securing  the  regular  payment  of  the 
said  annuity  of  800/.   to  W.  S.  and  J.   C,  their  executors,   &c. ,  and 
in  consideration  of  lOs.   paid  to  him  the  said  E.    P.  Lord  Dormer  by 
Chatfield,  he  the  said  E.  P.  Lord  Dormer  granted,  bargained,  sold,  and 
demised,  &.c.  to  Chatfield   the  premises  mentioned   in  the  declaration, 
which  were  before  charged  with  the  payment  of  the  said  annuity  of 
800/. ;  habendum  the  premises  thereinbefore  granted,  and  every  part  and 
parcel  of  the  same,  but  subject  and  charged  as  thereinbefore  was  men- 
tioned to  Chatfield,  his  executors,  &c.  for  the  term  of  200  years,  to  be 
computed  from  the   day   next  before  the  date  of   the  indenture,  and 
thenceforth  next  ensuing,  and  fully  to  be  complete  and  ended  without  im- 


8  Barnewall  &  Cresswell,  543.  293 

peachmeut  of  waste,  if  the  said  E.  P.  Lord  Dormer  shorkl  so  long  live. 

The  defendant  then  demurred  specially  to  the  replication. 

Serjt.  JE.  Lawcs  in  support  of  the  demurrer,  cited  Co.  Litt.  303  b. 
Field  V.  fVinlow,  Cro.  Ehz.  S97;  Cole  v.  Himlson,  6  T.  R.  234;  Shad- 
gett  V.  Clipson,  S  East,  32S;  and  Evans  v.  King,  Willes,  554. 

Piatt,  contra,  was  stopped  by  the  Court. 

Bayley  J.     This  is  an  action  of  trespass.     Actual  possession  is  suffi- 
cient to  entitle  a  man  to  maintain  trespass  against  a  wrongdoer.     The 
defendant  by  his  plea  says  he  is  not  a  wrongdoer,  because  in  January 
1S23  he  recovered  judgment  against  John  E.  P.  Lord  Dormer,  and  sued 
out  an  elegit,  by  virtue  of  which  an  inquisition  was  held,  and  the  jurors 
found  that  at  the  time  when  judgment  was  obtained,  Lord  Dormer  was 
seised  for  life  of  lands,  (including  the  premises  mentioned  in  the  declara- 
tion,) and  that  the  sheriff  delivered  to  him  those  lands.     In  order  to  give 
the  defendant  a  good  title  against  the  plaintifij  (who  is  admitted  by  the 
demurrer  to  have  been  in  possession,)  the  defendant  ought  to  shew  that 
Lord  Dormer  had  some  title  to  the  land  in  question,  at  the  time  when 
the  elegit  issued.      By  the  inquisition  set  out  in  the  first  plea,  it  is  found 
that  Lord  Dormer  was  seised  for  life.     Assuming  that  to  be  a  sufficient 
allegation  that  he  was  so  seised,  does  the  replication  confess  and  avoid  the 
matters  stated  in  the  plea?     It  states  that  Lord  Dormer  being  seised  for 
life  before  the  judgment  (mentioned  in  the  plea),  in  March  1S20  by  in- 
denture bargained  and  sold  to  the  plaintiff  the  tenements,  (including  the 
premises  mentioned  in  the  declaration,)  and  that  he  entered  and  became 
possessed,  and  continued  so  possessed  until  the  committing  of  the  tres- 
pass.    The  plaintiff  and  defendant  claim  under  Lord  Dormer.     The 
plaintiff  claims  by  virtue  of  a  deed  executed  in  1820;  the  defendant  by 
virtue  of  a  judgment  obtained,  and  elegit  issued,  in  1S23.     The  title  of 
the  plaintiff  is  prior  in  point  of  time.     The  lease  supersedes  Lord  Dor- 
mer's right.      It  has  been  insisted  that  the  lease  set  out  in  the  replication 
is  not  an  answer  to  the  plea,  because  it  appears  by  the  plea  that  the  judg- 
ment was  obtained  against  Lord  Dormer,  sued  by  one  christian  name,  and 
it  appears  by  the  lease  set  out  on  oyer,  that  Lord  Dormer,  who  granted 
that  lease,  does  not  use  the  same  christian  name.      But  the  replication 
alleges  that  the  said  Lord  Dormer  being  seised  for  life  by  indenture,  de- 
mised the  premises.     The  replication,  therefore,  shews  that  Lord  Dor- 
mer, who  granted  the  lease,  and  Lord  Dormer,  against  whom  the  judg- 
ment was  obtained,   was  the  same  person.      It  is  not  competent  to  the 
defendant  upon  demurrer,  to  say  that  it  was  not  the  same  Lord  Dor- 
mer.    Lord  Dormer  may  have  been  sued  by  a  wrong  Christian  name  in 
the  suit  in  which  judgnuMit  was  oijtaincd  against  him,  or  he  may  have 
used  a  wrong  Christian  name  in  the  lease.     The  lease  is  not  void  by  rea- 
son of  the  lessor  having  used  a  wrongChristian  name.    But  it  is  said  that 
the  lease  set  out  on  oyer  shews  that  the  plaintiff  had  no  right  to  the  pre- 
mises in  question.     It  recites  an  indenture  made  by  Lord  Dormer  in 
^une   1819,   whereby  he  granted  an  annuity  of  1725/.  for  ninety-nine 
years  charged  upon  (inter  alia)  tiie  premises  mentioned  in  the  declara- 
tion, and  he  granted,   bargained,  anil  demised  those  premises  unto  H. 
Dawes,  habendum  for  100  years.      It  then  recites,  that  he  had  agreed  to 
sell  another  annuity  of  800/.  for  ninety-nine  years,  and  he  confirms  the 
annuity  of  1723/.,  ami  subject  thereto  rhargos  ihf*  premises  in  the  decla- 
ration with  thf  annuitv  <»f  800/. ;  and  for  better  securing  the  regular  pay- 
ujont  of  that,  annuity,   liarg^in^,   sells,   and  demises    unto   the  plainlifl 


294  CilATFiELU  V.  Paukeu.  T.  T.  1828. 

(amonc,  others)  tlic  premises  mentioned  in  the  declaration,  for  200  years. 
It  appears,  tlierefbre,  by  tlie  lease  set  out  on  oyer,  that  those  premises 
were  charged  with  an  annuity  of  1725/.,  and  for  better  securing  the  pay- 
ment of  that  annuity  had  been  conveyed  to  Dawes.  The  demise  to  the 
plaintitr  was  subject  to  the  right  of  Dawes.  But  Dawes  was  not  bound  to 
enter;  and  if  hedid  not  enter,  the  plaintiO'  had  the  riglit.  It  is  averred 
in  the  replication,  that  the  plaintift'  entered  and  became  possessed,  and 
continued  in  possession  until  the  trespass  was  committed.  The  repli- 
cation shews  that  the  plaintiif  had  a  right  to  the  land  against  every  per- 
son but  Dawes.  The  demise  to  the  plaintiff  was  to  commence  the  day 
preceding  the  date  of  the  indenture.  It  must  be  presumed,  therefore, 
that  Dawes  had  not  entered  at  that  time.  It  is  quite  sufficient,  however, 
for  the  purposes  of  this  case,  to  say  that  the  lease  set  out  upon  the  record 
destroys  all  right  of  the  defendant,  who  claimsundera  judgment  obtain- 
ed against  Lord  Dormer  in  1823,  because  it  shews  that  Lord  Dor- 
mer at  that  time  had  no  interest  in  the  premises  mentioned  in  the 
declaration.  The  defendant,  therefore,  could  derive  no  title  from  him, 
and  was  consequently  a  wrongdoer;  and  the  plaintiff  having  shewn  that 
he  was  in  actual  possession  at  the  time  when  the  trespass  was  committed, 
is  entitled  to  maintain  this  action.  The  judgment  of  the  Court  must  be 
for  the  plaintiff. 

HoLROYD  J.   concurred. 

Judgment  for  the  plaintiff  (a). 

(a)  This  action  was  originally  commenced  in  the  name  of  John  Doe.  The  de- 
fendant pleaded  the  judgment  and  elegit,  &c.  The  plaintiff  replied,  the  demise 
by  indenture  to  Chatfield,  his  entry,  and  that  after  such  entry  the  said  plaintiff,  in 
Hilary  term,  1826,  commenced  an  ejectment  against  the  defendants,  in  which 
action  the  said  John  Doc,  as  the  nominal  ])laintiff,  complained,  &c.  (setting  out  the 
declaration).  It  then  stated  that  John  Doe,  in  Michaelmas  term  in  that  year, 
recovered  judgment,  and  afterwards  entered.  Upon  demurrer  to  this  replica- 
tion, the  Court,  after  argument  at  the  sittings  in  banc,  after  Hilary  term  1827, 
held  the  replication  to  be  bad;  first,  for  stating  that  Chatfield  was  in  possession 
at  the  time  of  the  trespasses,  thereby  negativing  John  Doe's  possession  of  them 
at  that  time,  which  was  a  departure  from  the  declaration;  and,  secondly,  because 
the  replication  did  not,  and,  as  it  seemed,  could  not  shew  any  right  to  the  posses- 
sion in  John  Doe,  or  even  state  that  he  was  a  nominal  plaintiff"  in  this  action,  as 
well  as  the  ejectment,  but  only  that  John  Doe,  as  the  nominal  plaintiff  in  the  eject- 
ment, complained,  &c. ;  and  they  intimated  that  the  plaintiff  had  better  amend, 
by  making  Chatfield  the  plaintiff  on  the  record  instead  of  John  Doc,  and  the 
amendment  was  made  accordingly. 


KND  OF    I  KINI  lY    1  F.UM. 


CASES 

ARGUED   AND  DETERMINED 

IN    THE 

COURT    OF    KING'S    BENCH, 

IN 

]\nCHAELMAS  TERM, 

In  the  Ninth  Year  of  the  Reign  of  George  IV.— 1828. 


MEMORANDA. 

In  the  early  part  of  this  term,  Mr.  Justice  Holroyd  resigned  his  seat 
in  this  Court.  He  was  succeeded  by  James  Parke  of  the  Inner  Temple, 
Esq.,  who  was  called  to  the  degree  of  Serjeant,  and  gave  rings  with  the 
motto  *'Justitiae  tenax."  He  took  his  seat  in  this  Court  on  Tuesday, 
the  18th  day  of  November,  and  was  afterwards  knighted.  Thomas  Den- 
man,  Esq.  took  his  seat  within  the  bar,  having  received  a  patent  of  pre- 
cedence. 


HELPS  v.  GLENISTER.— p.  553. 

Ihc  statute  58  C;.  3.  c.  75.  prohibits  the  buying  of  {jhcasants  in  all  cases,  and 
therefore  by  a  contract  for  the  sale  of  live  pheasants,  no  property  passes  to  the 
purchaser. 


WHITNASH  and    Another  v.   II.   (JEORGE  and   H.   GIFFORI).— 

p.  55G. 

In  an  action  upon  a  bond  j^ivcn  to  bankers,  conditioned  for  the  fidelity  c)f  a  clerk, 
entries  of  the  receipt  of  sums  of  money  made  by  tlie  clerk  in  Ijooks  kept  by  him 
in  the  discharge  of  his  duty  as  clerk,  are.  after  his  death,  evidence  aj^ainst  his 
sureties  of  the  fact  of  the  receipt  of  the  money. 

Debt  on  bond,  dated  the  Glh  of  October  182  1.  Thn  defendant 
George  suffered  judgment  by  default.  Tiic  defendant  Gifford  craved 
oyer  of  the  bond  and  condition.  The  condition,  after  reciting  that  the 
plaintifls  had  talu-n  oiu-  S;imuel  Pitman  into  their  service  a.-i  a  clerk,  and 
that  II.  (icorge  and  H.  (lifTord  bad  ngrced  to  onlcr  into  tlio  bond  for  his 
fidelity  iti  the  .said  rinplny,  wa.s  that  Pitman    should   from  time  to  time. 


296  Whitnash  v.  Geouge.  M.  T.  1828. 

anil  at  all  times,  so  long  as  he  should  l)e  in  the  service  of  tlic  plainlills, 
well  anil  truly  and  faithl'ully  account  for,  pay  over,  and  deliver  unto  the 
plaintilVs,  their  executors,  &c.,  or  to  such  other  person  or  persons  as  they, 
or  any  or  cither  of  them  should  direct,  all  sums  of  money,  hooks,  papers, 
matters,  and  things  of  or  belonging  to  the  plaintiffs,  which  should  at  any 
time,  and  from  time  to  time,  be  received  by,  or  come  to  the  hands  of 
him,  the  said  S.  Pitman,  and  also  did  and  should  act  and  conduct  himself, 
at  all  times,  with  fidelity,  integrity,  and  punctuality  in  and  concerning 
the  matters  and  things  which  should  or  might  be  reposed  in  or  intrusted 
to  him  as  such  clerk  as  aforesaid.  Plea,  that  Pitman  did  from  time  to 
time,  and  at  all  times,  so  long  as  he  continued  in  the  service  of  the  plain- 
tiff, well,  truly,  and  faithfully  account  for,  pay  over,  and  deliver  unto 
the  plaintiffs  all  sums  of  money,  books,  papers,  matters,  and  things  be- 
longing to  the  plaintiffs,  which  at  any  time,  and  from  time  to  time,  was 
or  were  received  by,  or  came  to  the  hands  of  him.  Pitman;  and  act  and 
conduct  himself  at  all  times  with  fidelity,  integrity,  and  punctuality,  in 
and  concerning  the  matters  or  things  which  were  reposed  in  or  intrusted 
to  him  as  such  clerk  as  aforesaid.  Replication,  that  during  the  said  time 
that  Pitman  so  remained  in  the  said  service  of  the  plaintiffs  as  such  clerk, 
to  wit,  on  the  7th  of  October  1824,  he.  Pitman,  as  such  clerk,  had  and 
received,  for  and  on  account  of  the  plaintiffs,  divers  sums  of  money, 
amounting  to  2000/.  belonging  to  the  plaintiffs,  yet  Pitman,  although 
often  requested,  had  not  accounted  for  or  paid  over  the  same,  or  any  part 
thereof,  to  the  plaintiffs.  Rejoinder,  that  Pitman  did  not  as  such  clerk 
have  or  receive,  for  and  on  the  account  of  the  plaintiffs,  the  said  sums  of 
money  in  the  replication  mentioned,  or  any  part  thereof.  At  the  trial 
before  Littledalei.  at  the  Summer  assizes  for  the  county  of  Somerset 
1828,  it  appeared  that  the  plaintiffs  were  bankers  at  Yeovill,  in  Somer- 
setshire; and  that  Pitman  became  their  clerk  in  October  1824,  and  con- 
tinued to  act  as  such  until  February  1826,  when  he  died.  It  was  his 
duty,  as  such  clerk,  to  keep  the  plaintiffs'  books.  In  order  to  prove 
that  Pitman  was  indebted  to  the  plaintiffs  at  the  time  of  his  death,  on 
account  of  money  received  by  him  in  his  character  of  clerk,  the  plain- 
tiffs produced  the  book  kept  by  him  in  which  there  were  entries  in  his 
hand-writing  of  various  sums  of  money  received  by  him  during  the  time 
he  continued  in  their  service  as  clerk.  It  was  objected,  that  although 
these  entries  would  have  been  evidence  against  Pitman,  they  were  not 
evidence  against  the  defendants,  who  were  his  sureties.  The  learned 
Judge  received  the  evidence,  and  directed  a  verdict  to  be  found  for  the 
plaintiffs,  but  reserved  liberty  to  the  defendants  to  move  to  enter  a  non- 
suit. 

Mereivether  ^Qr]\..  now  moved  accordingly,  citing  Cutler  v.  Newlin, 
Mann.  Dig.  137;  Goss  v.  Watliugton,  3  Brod.  &  Bingli.  132. 

Lord  Tenterden  C.  J.  It  appears  by  the  recital  in  the  condition  of 
the  bond,  that  the  plamtiffs  had  agreed  to  take  Pitman  into  their  service 
as  a  clerk,  and  that  the  defendants  had  agreed  to  become  bound  for  his 
fidelity  in  the  said  employ;  and  the  condition  was,  that  Pitman  should 
well  and  truly  account  for,  pay  over  and  deliver  to  the  plaintiffs,  or  to 
such  other  persons  as  they  should  direct,  all  sums  of  money,  books, 
papers,  matters,  and  things  belonging  to  the  plaintiffs,  which  should 
come  to  his  Pitman's  hands.  The  defendants  plead  general  performance. 
The  plaintiffs  reply,  that  Pitman,  as  such  clerk,  had  received,  for  and  on 
account  of  the  plaintiffs,  divers  sums  of  money  belonging  to  the  plaintiffs. 


8  Barnewall  &  Cresswell,  556.  297 

and  had  not  accounted  for  or  paid  over  the  same  to  the  plaintiffs.  The 
defendants  rejoin,  that  Pitman  did  not,  as  such  clerk,  have  or  receive, 
for  and  on  the  account  of  the  plaintiffs,  the  said  sums  of  money  in  the 
replication  mentioned;  and  upon  that  allegation  issue  is  joined.  It  lay 
upon  tiie  plaintiffs,  therefore,  to  shew  that  Pitman  did  have  and  receive 
sums  of  money  for  which  he  had  not  accounted.  In  order  to  prove  that 
fact,  the  plaintiffs  produced  the  books  kept  by  Pitman  in  discharge  of 
his  duty  as  their  clerk.  Those  books  contained  entries  made  by  him, 
whereby  he  charged  himself  with  various  sums  as  having  been  received 
by  him  on  account  of  the  plaintiffs.  The  question,  therefore,  is,  whether 
those  entries  be  evidence  after  his  death  against  the  defendants  who 
bound  themselves  to  the  plaintiffs,  that  he  should  faithfully  discharge 
his  duty  as  clerk,  and  account  to  the  plaintiffs  or  to  their  nominee.  I 
think  those  entries  whereby  he  charged  himself  with  sums  of  money 
as  having  been  received  by  him  for  the  plaintiffs,  were  admissible  la 
evidence  against  the  defendants  in  an  action  on  the  bond,  whereby  they 
became  bound  that  Pitman  should  faithfully  discharge  his  duty  as  clerk. 
It  is  part  of  the  duty  of  a  banker's  clerk  to  make  entries  (in  the  books 
kept  by  him)  of  all  sums  of  money  received  by  him  for  his  employers. 
Such  entries  made  by  the  clerk  must,  as  against  his  sureties,  who  con- 
tracted for  the  faithful  discharge  of  his  duty,  be  taken  prima  facie  to  have 
been  made  by  him  in  discharge  of  that  duty.  I  think,  therefore,  that  ia 
this  action  the  entries  made  by  Pitman  (in  those  accounts  which  it  was 
his  duty  as  the  clerk  of  the  bankers  to  keep),  whereby  he  charged  himself 
with  the  receipt  of  sums  of  money,  were  after  his  death  admissible 
evidence  of  those  sums  having  been  received  by  him,  not  altogether  as 
declarations  made  by  him  against  his  interest,  but  because  the  entries 
were  made  by  him  in  those  accounts  which  it  was  his  duty  as  clerk  to 
keep,  and  which  the  defendants  had  contracted  that  he  should  faithfully 
keep. 

Baylky  J.  The  foundation  of  the  decision  in  Goss  v.  IVatlingtoriy 
3  Brog.  &  Bingh,  132,  was,  that  the  entries  made  by  the  collector  were 
admissible,  not  merely  as  a  declaration  made  by  him  against  his  interest, 
but  on  the  ground  that  they  were  entries  in  those  very  books,  which  by 
the  condition  of  the  bond  the  principal  was  bound  faithfully  to  keep. 
The  entries  were  evidence  against  the  surety,  because  they  were  made 
by  the  collector  in  pursuance  of  the  stipulation  contained  in  the  condition 
of  the  bond.     That  case  in  principle  is  the  same  as  the  present. 

Rule  refused. 


ALLEN  an.l   Another,   Assignees  of  SCOTT,   a   Bankrujit,  v.    SU- 

GRUE.— p.  501. 

Where  a  vessel  insured  in  a  valued  policy  at  2000/.  received  damaj^e  l)y  perils 
of  the  sea  wliich  could  have  been  re])a'ired  for  1450/,  but  the  jury  found  that 
the  vessel  was  not  worth  repairing  :  Held,  that  this  was  a  total  loss,  and  the 
assured  were  entitled  to  recover  the  sum  at  which  the  vessel  was  valued  in 
the  policy. 

Assumpsit  against  the  secretary  of  the  St.  Patrick's  Assurance  Compa- 
ny on  a  policy  effected  by  the  bankrupt  on  the  ship  Benson,  valued  at 
2000/.,  for  twelve   months   from   the  Jd  of  December  1825,  averring  a 

VOL.     XV,  3^ 


298  Allen  v.  MonnisoN.  M.  T.  1828. 

total  loss  by  prrils  of  the  sea.  The  dcfciulants  paid  money  into  coirrt 
to  cover  an  average  loss,  and  pleaded  the  general  issue.  At  the  trial 
before  liaj/leij  J.  at  the  last  Summer  assizes  for  Newcastle-upon-Tyne^ 
it  was  proved  that  the  policy  was  duly  executed,  and  that  the  Benson 
was  afterwards  stranded  at  the  entrance  of  the  Hull  dock.  That  it 
would  have  cost  about  1450/.  to  repair  her,  and  that  when  repaired  she 
would  not  have  been  worth  that  sum.  For  the  defendant  it  was  con- 
tended, that  the  plaintiffs  could  not  recover  for  a  total  loss;  as  in  that 
case  they  would  receive  2000/.,  whereas  the  cost  of  repairing  the  da- 
mage done  to  tlie  ship  would  not  be  more  than  1450/.,  and  that,  as  suf- 
ficient was  paid  into  court  to  recover  a  loss  of  1450/.,  the  plaintiffs  must 
be  nonsuited.  The  learned  Judge  reserved  the  point,  and  left  it  to  the 
jury  to  say  whether  the  ship  was  worth  repairing,  and  they  found  that 
she  was  not,  and  a  verdict  was  entered  for  the  plaintiffs  for  a  total  loss. 
In  jNIichaelmas  term, 

F.  Pollock  moved  for  a  rule  nisi  to  enter  a  nonsuit. 

Lord  Tenterden  C.  J.  I  am  of  opinion  that  the  question,  whether 
the  loss  sustained  is  a  partial  or  total  loss,  is  precisely  the  same  where 
the  value  of  the  ship  has  been  mentioned  in  the  policy,  and  where  that 
has  been  left  open.  If  the  value  has  not  been  mentioned,  it  must  be 
ascertained  by  evidence;  if  it  has  been  mentioned,  then  all  further  in- 
quiry is  unnecesary,  as  the  parties  have  agreed  as  to  what  shall  in  the 
event  of  loss  be  considered  the  value.  If  underwriters  find  by  experi- 
ence that  the  practice  of  entering  into  valued  policies  is  injurious  to  them, 
they  may  very  easily  avoid  it  for  the  future.  Then,  was  this  a  total 
loss  ?  The  jury  have  found  that  the  ship  was  so  much  damaged  as  not 
to  be  worth  repairing,  or,  in  other  words,  that  although  the  materials 
of  the  ship  remained,  the  ship  itself  did  not.  That  in  my  mind  con- 
stitutes a  total  loss;  and  it  would  be  strange  if  this  were  otherwise,  for 
the  ship  ceased  to  exist  for  any  useful  purposes  as  a  ship.  A  total  loss 
of  the  ship  ought,  therefore,  to  be  paid  for,  and  that  is  the  sum  agreed 
upon  as  the  estimated  value  of  the  ship,  minus  the  value  of  the  mate- 
rials saved. 

Bayley  J.  I  think  that  the  question  whether  a  loss  is  total  or  not 
depends  upon  the  facts  of  the  case,  and  the  nature  and  extent  of  the  da- 
mage done  to  the  ship;  and  not  upon  the  nature  of  the  policy  effected 
upon  her.  Whether  that  is  valued  or  open  cannot  alter  the  nature  of 
the  loss.  The  only  difference  between  them  is,  that  in  one  case  the  as- 
sured must  prove  the  value  of  the  thing  insured  ;  in  the  other  he  need 
not. 

Rule  refused. 


ALLEN  and  Another,  Assignees  of  SCOTT,  a  Bankrupt,  v.  MORRI- 
SON.—p.  5Q5. 

Where  the  members  of  a  mutual  insurance  club  all  executed  the  same  power 
of  attorney,  severally  authorizing  the  persons  therein  named  to  sign  the  club 
policies  for  them,  held,  that  it  required  only  one  stamp. 


8  Barnewall  &  Cresswell,  568.  299 

H.  B.  COLES,  Administrator  of  C.  COLES,  v.  HULME.— p.  568. 

The  condition  of  a  bond  recited  that  A.  was  indebted  to  B.  in  various  sums  of 
money,  which  were  all  stated  in  pounds  sterling,  and  money  of  a  smaller  de- 
nomination, and  that  the  bond  was  given  to  secure  payment  of  those  suras.  lu 
the  obligatory  part  of  the  bond  the  word  /lounds  was  omitted;  it  merely  stated 
that  the  obligor  became  bound  in  7700,  without  stating  what  description  of 
money:  Held,  that  from  the  condition  the  intent  manifestly  was,  that  the  obligor 
should  become  bound  in  7700  ftounds,  and  that  the  word  /loimds  might  there- 
fore be  supplied. 

Declaration  by  the  plaintiff,  as  administrator  of  Catherine  Coles 
deceased,  on  a  bond  bearing  date  the  1st  of  June  ISOS,  for  7700/.  Plea, 
after  craving  oyer  of  the  bond  and  condition,  non  est  factum.  At  the 
trial  before  Lord  Tenterden  C.  J.  at  the  London  sittings  after  last  term, 
it  appeared  upon  the  production  of  this  bond,  that  the  word  ''pounds'* 
in  the  obligatory  part  of  the  bond  had  been  omitted.  The  penalty  was 
merely  described  as  7700,  without  any  species  of  money  being  men- 
tioned. The  condition  of  the  bond  recited  an  indenture  of  the  5th  of 
January  1807,  whereby  P.  Coles  and  J.  C.  Burckhardt  agreed  to  become 
partners  in  trade  for  seven  years,  with  a  stipulation,  that  if  either  party 
should  happen  to  die  before  the  expiration  of  that  time,  the  survivor 
should  for  two  years  afterwards  carry  on  the  trade  for  the  benefit  of  the 
survivor  and  the  executors  of  the  deceased  partner,  on  the  same  terms  as 
if  both  were  living,  and  at  tlie  end  of  the  term  of  two  years  the  survivor 
should  take  the  whole  stock,  and  should  pay  the  value  of  a  moiety  of 
such  stock  to  the  executor  of  the  deceased  partner;  and  for  better  securing 
payment  of  the  said  sums,  the  surviving  partner  should,  within  three 
months  after  the  end  of  the  said  term  of  two  years  after  the  decease  of 
his  co-partner,  become  bound  to  the  executors  of  that  partner  in  a 
bond  conditioned  for  payment  of  the  money,  and  for  indemnifying  the 
executors  of  the  deceased  partner  from  all  debts;  and  upon  executing 
such  bond  the  executors  of  the  deceased  partner  were  to  assign  to  the 
surviving  partner  all  the  joint  property  in  the  stock  in  trade.  It  then 
recited  that  P.  Coles  died  on  the  l!Jlh  of  September  ISOS,  and  appointed 
Catherine  Coles  his  executrix;  and  that  P.  Coles  had  during  his  lifetime 
advanced  to  the  joint  trade  1500/.,  exclusive  of  1000/.  advanced  to  lUirck- 
hardt,  and  secured  to  P.  Coles  by  the  bond,  and  that  those  sums  were 
still  due;  and  that  C.  Coles  and  Burckhardt  had,  in  lieu  of  carrying  on 
the  trade  in  partnership  for  two  years,  agreed  to  dissolve  the  same  im- 
mediately; and  that,  in  lieu  of  the  profits  of  the  moiety  of  the  business 
for  those  two  years,  Piurckbardt  should  pay  C.  Coles  1000/.  in  the  man- 
ner tliercinafter  menlioiicd,  ns  a  full  compcnsalion  to  her  for  all  the 
profits  which  she  would  have  been  entitled  to  if  the  trnde  had  been  car- 
ried on  for  the  spnce  of  two  years.  It  thou  recited,  that  the  co-partner- 
ship properly  had  been  valued  at  -1718/.  2s.  l(f.,  and  that  C.  Coles  had 
assigned  to  Burckhardt  her  moiety  in  the  stock  in  trade,  and  that  the 
latter  had  indemnified  C.  Coles  against  all  claims  arising  out  of  the  co- 
partnership; and  that  it  had  Ix^en  agreed  that  iiurckhardt  and  the  defend- 
ant should  enter  into  the  bond  for  securing  to  C.  Coles,  her  executors. 
&c.  the  payment  of  the  several  sums  of  1000/.  and  1500/.  so  advanced  by 
P.  Coles  lo  the  joint  trade,  and  of  the  sum  t»f  '33.5?^/.  l.v.  \i\<l.,  I)«'ing  one; 
moiety  of  1718/,  2v.  Id.,  the  value  of  the  p.irlu(rrship  eirerts.  The  con- 
dition of  the  bonil  then  vv.is,  that  if  Muirldiardl  sluudd  ])ty  to  C.  C-oIcs 
'ho  full  sum  of  lOOO/,  will)  Mitcr';kll)y  inslalmcnls  a>  (hciciii  mentioned; 


300  Coles  v.  Hulme.  M.  T.  1828. 

and  also  llic  sum  of  1500/.  on  the  1st  day  of  November  then  next,  being 
the  money  ailvanced  by  P.  Coles  in  his  lifetime  to  the  joint  trade;  and 
also,  on  the  1st  of  January  1809,  1179/.  \0s.  lid.,  being  one  moiety  of 
the  sum  of  235D/.  Is.  3^d.,  the  moiety  of  the  value  of  the  partnership 
efl'ects;  and  on  the  1st  day  of  January  ISIO,  the  further  sum  of  1179/. 
lOs.  lid;  being  the  remaining  moiety  of  the  said  sum  of  2359/.  \s.  3\d., 
together  with  interest,  the  bond  was  to  be  void.  It  was  objected  by 
Sir  James  Scarlett  that  the  bond  was  void  for  uncertainty,  because  it 
did  not  specify  any  description  of  money;  it  might,  therefore,  be  marks, 
guineas  or  pounds.  Lord  Tenterden  C.  J.  was  of  opinion,  that  as  it 
appeared  by  the  condition  that  the  bond  was  given  to  secure  various 
sums  of  money  described  as  being  composed  of  pounds,  &c.  it  might 
fairly  be  inferred  that  the  penal  part  of  the  bond  which  was  given  to 
secure  the  payment  of  those  sums  should  be  in  the  same  species  of  money, 
and  that  in  furtherance  of  that  intention  the  word  "pounds"  might  be 
supplied;  and  he  directed  the  jury  to  find  a  verdict  for  the  plaintiff,  but 
reserved  liberty  to  the  defendant  to  move  to  enter  a  nonsuit. 

Sir  Jafnes  Scarlett  now  moved  accordingly.  He  cited  Com.  Dig. 
tit.  Obligation  (A),  citing  Dodson  v.  Kayes,  Yelv.  193;  tit.  Fait,  (F)  1., 
citing  Pigot's  case,  11  Co.  27;  10  Coke,  133.  a.;  Com.  Dig.  tit.  Obliga- 
tion (B),  3;  Loggias  v,  Titherton,  Yelv.  225;  Com.  Dig.  Obligation, 
(B)  5;  Partrose^s  case,  cited  in  Hills  v.  Cooper,  Cro.  Jac.  603;  RolVs 
Abr.  Obligation,  (D)  147. 

Lord  Tentekden  C.  J.  In  every  deed  there  must  be  such  a  degree 
of  moral  certainty  as  to  leave  in  the  mind  of  a  reasonable  man  no  doubt 
of  the  intent  of  the  parties.  The  question  in  this  case  is,  Whether  there 
is  in  this  bond  that  degree  of  moral  certainty  as  to  the  species  of  money 
in  which  the  party  intended  to  become  bound?  I  thought  at  the  trial 
there  was.  The  obligatory  part  of  the  bond  purports  that  the  obligor 
is  to  become  bound  for  7700.  No  species  of  money  is  mentioned.  It 
must  have  been  intended  that  he  should  become  bound  for  some  species 
of  money.  The  question  is,  Whether  from  the  other  parts  of  the  in- 
.*itrument  we  can  collect  what  was  the  species  of  money  which  the  party 
intended  to  bind  himself  to  pay  ?.  [His  Lordship  then  read  the  recitals 
in  the  condition,  and  proceeded  as  follows:]  It  appears,  therefore,  that 
the  intent  was  that  the  defendant  should  enter  into  a  bond  for  securing 
to  P.  Coles  various  sums  of  money  described  in  these  recitals  as  being 
composed  of  pounds  sterling  and  other  money  of  a  smaller  denomination. 
That  being  so,  I  cannot  entertain  any  doubt  that  the  intention  was  that 
the  obligor  should,  in  order  to  secure  the  payment  of  those  sums,  be- 
come bound  in  a  penalty  consisting  also  of  pounds  sterling;  and  if  that 
•ivcre  the  intention,  then  the  bond  ought  to  be  read  as  if  the  \\oxi}i  pounds 
were  inserted  in  it. 

Bayley  J.  It  l?as  been  decided,  that  in  furtherance  of  the  obvious 
intent  of  the  parties,  even  a  blank  may  be  supplied  in  a  deed  (a).     In 

(a)  The  case  alluded  to  by  the  learned  judge  was,  probably,  that  of  Lloyd  v. 
Lord  Say  and  Selr,  10  Mod.  46.  There  the  name  of  the  bargainor  was  omitted 
in  the  operative  part  of  a  bargain  and  sale,  and  it  was  supplied  in  K.  B.,  it  mani- 
festly appearing  from  the  other  parts  of  the  deed  tluit  Lord  Say  was  the  grantor; 
and  the  judgment  of  the  Court  of  K.  B.  was  afterwards  affirmed  in  the  House  of 
Lords,  1  Brown's  Parliamentary  Cases,  379.  In  Lmigdon  v.  Goole,  3  Lev.  21., 
a  man  was  bound  in  an  obligation,  but  it  was  not  said  to  whom,  and  that  was  sup- 
plied. Sec  alio  Uvcdnlr  \\  Halfjirnny,  2  P.  Wms.  151 ;  Ex  parte  Symonds,  1  Cox, 
200;  Eif,hr,fi  v.  Church,  2  Vcs.  Sen.  100.  3/1;  Targns  v.  Puger,'2  Vcs.  194,  and 
Cholmondehj  v.  Clinton,  2  Jac.  &  W.  1. 


8  BaRNEWALL  &  CUESSWELL,  568.  301 

Waugh  V.  Russell,  1  Marshall,  214,  the  word  hundred  was  omitted  in 
the  latter  part  of  the  condition  of  a  bond.  It  was  held  that  it  might  be 
supplied,  and  that  in  pleading  the  bond  might  be  described  according  to 
its  legal  effect,  as  if  the  word  hundred  had  been  inserted  in  it.  I  think 
in  this  case  that  it  is  obvious  that  the  obligor  meant  to  bind  himself  in  a 
penal  sum  consisting  of  pounds  sterling,  and,  therefore,  that  the  omission 
of  the  word  pounds  may  be  supplied. 

LiTTLEDALE  J.  I  have  entertained  some  doubts  whether  the  word 
pounds  could  be  supplied;  but,  upon  the  whole,  I  think  it  sufficiently 
appears,  from  the  recital  in  the  condition  of  the  bond,  to  have  been  the 
intention  of  the  parties  that  the  penal  part  of  the  bond,  which  was  to 
secure  the  payment  of  various  sums  stated  in  the  condition  in  pounds 
sterling,  should  also  he  pounds. 

Rule  refused. 


CARPENTER  v.  BLANDFORD.— p.  575. 

A.  ngreeil  to  sell  to  B.  his  interest  in  a  public-house,  and  his  furniture,  &c.  at  an 
appraisement  to  be  made  by  two  appraisers,  the  same  to  be  paid  for  on  B.'s 
taking  possession,  which  was  to  be  on  or  before  the  25th  of  March  then  next ; 
and  30/.  was  paid  by  B.  as  a  deposit ;  and  he  agreed  that  if  he  should  not  com- 
plete his  part  of  the  agreement,  the  sum  so  paid  should  be  forfeited.  The 
buyer  and  seller  appointed  appraisers  respectively.  On  the  25th  of  March 
the  two  appraisers  met,  and  the  seller's  appraiser  was  then  informed  that  the 
appraiser  of  the  buyer  could  not  conveniently  on  that  day  complete  the  valua- 
tion, but  would  finish  the  business  the  next  day  ;  no  objection  was  then  made 
to  the  proposed  delay.  The  appraiser  of  the  buyer  went  to  the  seller's  pre- 
mises the  following  day  to  make  the  valuation,  but  the  seller  refused  to  allow 
him  so  to  do,  and  said  he  would  not  complete  the  contract :  Held,  that,  under 
the  circumstances,  it  was  incumbent  on  the  seller,  if  he  intended  to  insist  that 
the  contract  should  be  completed  on  the  day  mentioned  in  the  agreement,  to 
have  notified  such  intention  to  the  buyer  ;  and  not  having  so  done,  that  the  lat- 
ter was  entitled  to  recover  back  the  deposit. 

Assumpsit  for  money  had  and  received.  Plea,  the  general  issue. 
At  the  trial  before  Lord  Tenierden  C.  J.,  at  the  Middlesex  sittings  after 
last  term,  the  following  appeared  to  be  the  facts  of  the  case: — Hy  an 
agreement  of  the  25th  of  February  1828,  for  the  sale  of  the  interest  in 
a  public-house  and  stock  in  trade  of  a  publican,  between  the  plaintiff 
and  defendant,  in  consideration  of  262/.  to  be  paid  as  good-will  to  the 
defendant,  he  agreed  to  sell  to  the  plaintiff  his  interest  as  tenant  at  will 
in  a  public-house,  and  all  his  household  furniture,  goods,  fixtures,  and 
effects  on  the  premises  at  a  fair  appraisement,  to  be  made  by  two  ap- 
praisers or  their  uni[)irc,  and  all  his  stock  in  trade,  the  value  of  such 
stock  to  be  ascertained  by  two  proper  persons  or  their  umpire;  in  con- 
sideration of  which  the  jilaintiff  agreed  to  accept  the  said  house  and  pre- 
mises as  tenant  at  will,  and  j)ay  the  sum  of  2fi2/.  good  will,  and  to  pur- 
chase the  household  furniture,  goods,  fixtures,  slock,  and  effects  upon 
the  premises  at  a  fair  valuation  to  be  made  in  the  manner  above  stated, 
and  to  pay  for  the  same  at  the  time  of  his  taking  possession  of  the  pre- 
mises, which  it  was  mutually  agreed  by  the  parties  should  be  on  or  be- 
fore the  25th  of  March  1828,  and  as  earnest  of  the  agreement,  the 
plaintiff  had  paid  into  the  hands  of  the  defendant  the  sum  of  30/.,  to  be 
allowed  in  part  payment  on  the  completion  of  the  agreement,  but  should 
the  plaintiff  not  complete  his  part  of  the  agreement,  the  said  sum  of  30/. 


302     CAurENTEU  V.  Blandfoud.  M.  T.  1828. 

naul  as  a  deposit  was  to  bcconie  foiTcitcd;  and  it  was  further  agreed,  tliat 
cither  of  ihcni  not  performing  all  and  every  part  of  the  agreement,  the 
])arty  ilofaulting  shouUl  pay  to  the  other  100/.  as  liquidated  damages; 
and  further,  that  should  Messrs.  Calvert  and  Co.  refuse  to  accept  the 
plaintill'as  tenant,  the  deposit  money  was  to  be  returned,  and  the  agree- 
ment was  to  be  void.  It  appeared  that  the  plaintiff  and  defendant  had 
appointed  appraisers  respectively  to  make  the  valuation  of  the  furniture, 
stock,  &.C.  mentioned  in  the  agreement.  On  the  25th  March  the  defen- 
dant's appraiser  was  informed  by  the  plaintiff's  appraiser  that  he  was  s& 
busy  on  that  day  that  he  could  not  complete  the  valuation  of  the  defen- 
dant's stock  in  trade  on  that  day,  but  that  he  would  on  the  following 
day.  No  objection  was  then  made  to  the  delay.  The  plaintiff  attended 
with  his  appraiser  at  the  defendant's  premises  at  nine  o'clock  on  the  fol- 
lowing morning;  but  the  defendant  told  him  he  had  come  too  late,  that 
he  ought  to  have  come  on  the  preceding  day,  and  prohibited  the  broker 
from  making  any  valuation.  It  was  further  proved,  that  the  brewers 
had  not  refused  to  accept  the  plaintiff  as  tenant.  Upon  these  facts  it  was 
contended,  that  as  the  defendant  was  ready  to  complete  the  agreement 
on  the  25th  March,  and  the  plaintiff  had  made  default,  the  deposit  was 
forfeited  by  the  terms  of  the  agreement.  Lord  Ttnterden  C.  J.  was  of 
opinion  that  under  the  circumstances  of  this  case  the  plaintiff  was  not 
bound  to  complete  the  contract  on  the  25th,  that  as  the  defendant's 
agent  was  told  on  the  Tuesday  that  the  plaintiff's  appraiser  could  not  at- 
tend on  that  day,  but  would  on  the  day  following,  he,  the  defendant, 
■was  bound,  if  he  meant  to  avail  himself  of  the  strict  rule  of  law  that  the 
contract  should  be  performed  on  the  day  mentioned  in  the  agreement, 
to  send  notice  to  the  plaintiff  that  he  would  insist  that  the  contract  should 
be  completed  on  that  day;  and  he  directed  the  jury  to  find  a  verdictfor 
the  plaintiff. 

^\t  James  Scarlett  now  moved  for  a  new  trial,  and  contended  that 
the  time  fixed  for  the  completion  of  the  contract  was  at  law  an  essential 
part  of  the  contract,  Berry  v.  Yoinig,  2  Esp.  G40;  Lloyd  v.  Collett,  4 
liro.  C.  C.  469,  4  Ves.  69S.  Here,  therefore,  the  plaintiff  was  bound 
by  the  terms  of  the  agreement  to  be  ready  to  complete  his  contract  on 
the  25  th  of  Marcli;  he  made  default,  and  then  by  the  terms  of  the  agree- 
ment the  deposit  was  forfeited. 

Bayley  J.  The  defendant  in  this  case  insists  on  a  forfeiture,  which 
is  strictissimi  juris.  He  ought,  therefore,  to  shew  that  he  has  done 
every  thing  which  he  was  bound  to  do  to  entitle  him  lo  insist  on  the 
forfeiture,  and  that  he  has  not  done  any  thing  to  waive  that  right.  It 
appears  by  the  agreement  between  the  parties,  that  the  contract  was  to 
be  completed  on  the  25th  of  March.  The  stock  in  trade  was  to  be 
valued  by  appraisers.  Each  party  had  appointed  one.  On  the  25th  of 
March  the  plaintiff's  appraiser  informed  the  appraiser  appointed  by  the 
defendant  that  he,  the  plaintiff's  appraiser,  would  not  be  able  to  finish 
the  vahiation  until  the  day  following  at  three  o'clock;  to  which  the  de- 
fendant's appraiser  made  no  objection.  It  was  the  duty  of  the  defen- 
dant's agent  to  inform  his  principal  that  such  a  communication  had  been 
made  by  the  plaintiff's  agent;  and  it  must  be  presumed  that  he  did  so. 
If  that  communication  was  made,  and  tlie  defendant  meant  to  insist  on 
the  foifeiture,  it  was  his  duty  to  inform  the  plaintiff  that  he  should  insist 
II  the  forfeiture  unless  the  contract  was  completed  on  that  day.     Such 


8  Baknewall  &  CuEsswELL,  578.  303 

communication  not  having  been  made,  I  think  the  plaintiff  was  entitled 
to  recover  back  the  money  dcj)Osited. 
LiTTLEDALE  J.  Concurred. 

Rule  refused. 


PATTISON  V.  JONES.— p.  578. 

A.  having  discharged  his  servant,  and  hearing  that  he  was  about  to  be  engaged  by 
B.,  wrote  a  letter  to  B.,  and  informed  him  that  he  had  discharged  him  for  mis- 
conduct. B.,in  answer,  desired  further  information.  A.  then  wrote  a  second 
letter  to  B.,  stating  the  grounds  on  which  he  had  discharged  the  servant.  In  an 
action  by  the  servant  against  A.  for  a  libel  contained  in  this  letter,  it  was  held, 
that  assuming  the  letter  to  be  a  privileged  communication,  it  was  properly  left 
to  the  jury  to  consider,  whether  the  second  letter  was  written  by  A.  bona  fide, 
or  with  an  mtention  to  injure  the  servant. 

Declaration  stated  that  the  plaintiff,  before,  &c.,  had  been  retained 
and  employed  in  the  service  of  the  defendant  as  his  butler  and  servant; 
aiid  in  that  capacity  had  behaved  with  good  temper,  ability,  sobriety, 
honesty,  and  general  propriety  of  conduct,  and  never  was  or  until  the 
time  of,  &c.  suspected  to  have  been  guilty  of  drunkenness,  absence  from 
duty,  misconduct,  audacity,  or  of  having  made  free  with  or  stolen  or 
purloined  wines  or  goods  of  the  defendant,  his  master,  by  means  where- 
of he,  the  plaintiff,  had  not  only  deservedly  gained  the  good  opinion  of 
all  his  neighbours,  &.c.  but  had  also  supported  himself,  and  would  there- 
after have  supported  himself  by  his  exertions  in  the  service  of  his  mas- 
ters and  employers,  had  not  such  grievances  been  committed  as  there- 
inafter  mentioned;  that  the   plaintiff  before,   &c.    had   applied    to    be  , 
employed  by  and  in  the  service  of  one  A.  F.  Mornay  as  a  butler  and 
servant,  yet  the  defendant  well  knowing  the  premises,  but  contriving, 
&.C.  to  cause  it  to  be  suspected  and  believed  by  those  neighbours,  &c. 
and  particularly  by  A.  F.  Mornay,  that  the  plaintiff  was  not  fit  to  be 
employed  or  trusted  as  a  servant,  and  that  he  had  been  guilty  of  drunk- 
enness, absence  from  duty,  and  misconduct,  and  that  lie  had  mode  free 
with,  and  stolen  and  purloined  the  wines  of  the  defendant  wiiilst  the 
plaintiff  was  in  the  service  of  the  defendant  as  butler  aforesaid;  and 
thereby  to   prevent   A.    F.    Mornay    from   employing    him,    plaintiff, 
in   his   service,   and   to  wholly   ruin  him  and   to  deprive   him  of  the 
means  of  supporting  himself   by   honest   and    industrious  means,  on, 
&c.  at,  &.C.  wrongfully  and  maliciously  did  write,  compose,  and  publish 
a  certain  false,  malicious,  and   defamatory  libel  of  and  concerning  the 
plaintiff,  and  of  and  concerning  the  conduct  of  the  plaintiff  whilst  he  was 
in  the  service  of  the  defendant,  in  the  form  of  a  note  or  letter  directed 
to  A.  F.  Mornay,  containing  therein  the  false,   malicious,  defamatory, 
and   libellous  matter,  &c.   &c.   of  and  concerning,  &.c.   that  is  to  say, 
*'  Sir  (meaning  the  said  A.  F.  Mornay),  Having  been  informed  that  you 
had  an  intention  of  taking  my  butler  into  your  service,  I  feel  it  incum- 
bent upon  me  as  a  neighbour  tn  inform  you  that  1  have  just  discharged 
him  for  misconduct,  and  that   I  cannot  feel   myself  justified   in   recom- 
mending it  to  you  to  erjgngc  him;   I  have  been  rather  surprised  that  you 
liave  not  applied  to  me  for  his  character,  hut  I  shall  not  think  any  more 
about  it."     A  second  rount  charged  the  dnfcndant  with   [)ublishing  the 
following  libel:  '*  I   (meaning  the  defendant)  have  no  hesitation   in  in- 
forming you  that  I  discharged  my  butler,  not  only  qu  account  of  drunk- 


\04  Pattison  v.  Jones.  M.  T.  1828. 

enncss  ami  absence  from  his  tlnty  in  my  house,  hut  on  account  of  my 
having  jjreat  reason  to  believe  that  he  had  made  free  with  a  great  deal 
of  my  wines,  &.c.  in  which  I  found  a  very  great  deficiency  upon  an  ex- 
amination with  the  cellarman  who  packed  it  up  to  be  brought  down  to 
Putney,  who  took  a  regular  account  of  it,  which  I  have  got.  Pattison 
IkkI  the  audacity  to  open  all  those  packages  without  any  authority  from 
me;  and  he  acknowledged  that  fact  yesterday  before  witnesses,  when  he 
was  so  conscious  of  his  misconduct  that  he  said  he  would  not  take  any 
situation  in  the  neighbourhood  of  Putney."  By  means  whereof  the 
plaintiiV  had  been  greatly  injured  in  his  good  name  and  character  amongst 
ills  neighbours  and  other  subjects,  and  particularly  with  the  said  A.  F. 
JSIornay,  insomuch  that  they  had  hitherto  suspected  and  believed  the 
plaintilf  to  have  been  guilty  of  drunkenness  and  felony  whilst  in  the 
service  of  the  defendant  as  such  servant  or  butler,  and  to  be  unfit  to  be 
trusted  or  employed  in  the  capacity  of  a  servant;  and  also  by  reason  of 
the  premises,  and  on  no  other  account  whatever,  A.  F.  Mornay 
afterwards  wholly  refused  and  declined  to  retain  and  employ  the 
plaintiff  in  his  service,  as  he  otherwise  would  have  done,  and  by 
reason  thereof  the  plaintiff  had  not  only  been  deprived  of  the  sup- 
port, wages,  &:c.  which  would  have  accrued  to  him  from  being  so 
retained  and  employed  as  last  aforesaid,  but  had  hitherto  continued 
and  still  was  out  of  service  and  employ,  and  deprived  of  the  means  of 
supporting  himself,  and  was  otherwise  greatly  injured  and  damnified  and 
almost  wholly  ruined.  Plea,  general  issue.  At  the  trial  before  Lord  Ten- 
terden  C.  J.,  at  the  Middlesex  sittings  after  last  term,  the  plaintiff  prov- 
ed the  handwriting  of  the  defendant  to  the  two  letters  set  out  in  the  de- 
claration, and  the  following  letter  of  Mr.  Mornay  to  which  that  set  out 
in  the  second  count  was  an  answer:  ''Sir, — It  is  necessary  that  you  should 
state  the  particulars  of  the  misconduct  of  your  steward  to  determine  me 
to  deprive  him  of  the  situation  for  which  he  has  applied  to  me.  Is  he 
sober  and  honest?  You  will  of  course  consider  that  there  ought  to  be 
strong  grounds  for  depriving  a  man  of  his  character  and  his  bread;" — 
and  claimed  to  recover  damages  for  the  libel  set  out  in  the  second  count, 
hut  abandoned  the  first  count,  and  all  claims  for  special  damage.  It  was 
objected  by  the  defendant,  that  as  it  appeared  that  the  letter  containing 
the  alleged  libel  was  written  to  a  third  party,  who  had  invited  the  defen- 
dant to  give  him  a  character  of  the  plaintiff,  it  was  prima  facie  a  privi- 
leged communication;  and  that  it  therefore  lay  on  the  plaintiff  to  shew 
malice  in  fact,  or  that  the  defendant  was  actuated  by  ill-will  towards  the 
plaintiff  (a).  To  this  it  was  answered  by  the  counsel  for  the  plaintiff, 
that  in  an  ordinary  case  where  a  master  is  called  upon  by  a  third  party 
to  give  a  character  to  a  servant,  and  communicates  slanderous  matter,  it 
is  supposed  to  be  done  in  discharge  of  a  duty,  and  is  a  privileged  commu- 
nication, the  inference  of  malice  in  law  resulting  from  the  nature  of  slan- 
derous matter  being  rebutted  by  the  occasion  on  which  that  matter  is 
written  or  spoken.  In  that  case  it  is  incumbent  on  a  plaintiff  to  prove 
malice  in  fact.  But  in  this  case  the  defendant  wrote  the  first  letter  with- 
out being  required  so  to  do.  That  letter  imputes  misconduct  to  the  plain- 
tiff, and  invited  the  third  party  to  make  further  enquiry.  The  writing 
of  that  letter,  under  those  circumstances,  was  evidence  to  go  to  the  jury 
that  the  defendant  was  actuated  by  malice  in  fact  or  ill-will  against  the 

(fl)  See  Bromage  v.  Proaser,  4  B.  Sc  C.  247. 


8  Baunevvall  &  Cresswell,  578.  305 

plainlifl'.  Lord  Tenterden  was  of  opinion  that  under  the  circumstances 
of  this  case  it  was  a  question  for  the  jury  whether  the  defendant  when  he 
wrote  the  second  letter  acted  hona  fide.  The  defendant's  counsel  then 
proposed  to  call  witnesses  to  prove  the  truth  of  the  statements,  in  order 
to  shew  that  they  were  made  bona  fide.  Lord  Tenterden  received  the 
evidence,  but  expressed  doubts  whether  it  was  admissible  under  the 
general  issue;  and  he  finally  directed  the  jury  to  find  for  the  defendant  if 
they  thought  from  the  evidence  that  he  made  the  communication  bona 
fide,  but  for  the  plaintifl',  if  they  thought  he  made  the  communication 
with  the  intention  to  injure  tlie  plaintiti.  The  jury  having  found  for  the 
plaintiff, 

Sir  James  Scarlett  now  moved  for  a  new  trial. 

Lord  Tenterden  C.  J.  It  appeared  in  the  case  proved  on  the  part  of 
the  plaintiff  that  the  defendant  wrote  the  first  letter  to  Mr.  JNIornay, 
without  being  called  upon  by  him  so  to  do.  The  second  letter,  which 
contained  the  libellous  matter  in  respect  of  which  the  plaintiff  claimed  to 
recover  damages,  was  certainly  written  in  answer  to  enquiries  made  by 
Mornay ;  but  inasmuch  as  those  enquiries  were  invited  by  the  defendant, 
I  thought  it  was  a  question  for  the  jury,  whether  the  communication  con- 
tained in  that  letter  was  made  by  the  defendant  bona  fide,  acting  under  a 
belief  that  he  was  discharging  a  duty  which  he  owed  to  the  party  who 
was  al)out  to  take  the  plaintiif  into  his  service,  or  whether  it  was  made 
maliciously  with  an  intention  of  doing  an  injury  to  the  plaintifl'.  The 
jury  found  that  it  was  made  maliciously,  which  entitled  the  plaintiff  to  a 
verdict. 

Bayley  J.  Assuming  that  the  libel  set  out  in  the  second  count  was  a 
privileged  communication,  it  seems  to  me  that  the  case  was  properly  sub- 
mitted to  the  jury.  Generally  speaking,  any  thing  said  or  written  by  a 
master  when  he  gives  the  character  of  a  servant  is  a  privileged  commu- 
nication. If  a  servant,  therefore,  charge  a  master  witli  publishing  a  li- 
bel, it  is  competent  to  the  latter,  under  the  general  issue,  to  prove  that 
the  alleged  libel  was  written  under  such  circumstances  as  to  make  it  a 
privileged  communication,  and  thereby  throw  on  the  plaintiff  the  neces- 
sity of  shewing  that  it  does  not  come  within  that  protection  which  the 
law  gives  to  a  privileged  communication.  IJut  if  the  supposed  libel  be 
not  communicated  bona  fide,  it  docs  not  fall  within  the  protection  which 
the  law  extends  to  |)rivilcgcd  communications.  Here  the  second  letter 
of  the  defendant  was  written  in  answer  to  one  calling  upon  him  to  give 
an  account  of  the  plaintifi's  conduct,  but  the  defendant  wrote  his  first 
letter  without  being  called  upon  so  to  do.  1  do  not  mean  to  say  that  in 
order  to  make  libellous  matter  written  by  a  master  privileged,  it  is  es- 
sential that  the  party  who  makes  the  communication  should  he  put  into 
action  in  con.scquence  of  a  third  party's  putting  questions  to  him.  I  am 
of  opinion  he  may  (when  he  thmks  that  another  is  al)Out  to  take  into  his 
service  one  whom  lie  knows  ought  not  to  be  taken)  set  himself  in  motion, 
and  do  some  act  to  intluce  that  other  to  seek  informalfon  from  and  put 
questions  to  him.  The  answers  to  such  questions,  given  bona  fide  with 
the  intention  of  comnuinicating  such  facts  as  the  other  parly  ought  to 
know,  will,  although  they  contain  slanderous  matter,  come  williin  the 
scope  of  a  privileged  coinmunicalion.  Hut  in  such  a  case  It  will  be  .1 
question  for  the  jury,  whctlier  the  defendant  has  acted  bona  fide,  intend- 
ing honestly  to  discharge  a  duty;  or  whether  he  has  acted  maliciously,  in- 
Ifiuiing  to  do  an  injury  to  the  .servant  ?      [ii  forming  their  judgment,  the 

VOL.   XV.  J'J 


306  LiNDENAu  V.  Desbouough.  M.  T.  1828. 

jury  in  this  case  were  bound  to  take  into  their  consideration  the  fact  of 
the  defendant's  having  voluntarily  put  himself  into  motion,  and  thereby 
ineflbct  having,  by  the  first  letter,  desired  Mr,  Mornay  to  put  questions 
to  him.  These  questions  were  put,  and  gave  occasion  to  the  second  let- 
ter. Tlie  question  for  the  jury  to  consider  was,  whether  the  defendant 
acted  honestly  and  bona  fide  in  making  the  representation  contained  in 
that  letter  ?  The  jury  had  that  question  submitted  to  their  considera- 
tion, and  they  were  of  opinion  that  the  communication  was  not  made 
bona  fide,  but  that  it  was  made  with  the  intention  to  injure  the  plaintiff; 
and  if  it  was  made  with  that  intention,  it  was  not  a  privileged  commu- 
nication. 

LiTTLEDALE  J.  It  seems  to  me  that  the  letter,  taken  by  itself,  is  a 
libel;  but  if  it  was  a  privileged  communication,  it  was  not  necessary  for 
the  defendant  to  plead  a  justification,  he  might  make  that  a  defence  on 
the  general  issue,  and  give  evidence  to  satisfy  the  jury,  that  under  the 
circumstances  of  the  case  it  was  a  bona  fide  communication.  That  ques- 
tion was  properly  submitted  to  their  consideration,  and  they  have  come 
to  a  conclusion  that  it  was  not  made  bona  fide,  and  that  the  defendant 
was  actuated  by  malice.  I  perhaps  should  not  have  come  to  the  same 
conclusion;  but  I  think  the  verdict  ought  not  to  be  disturbed.  Upon 
the  question,  whether  a  master  who  has  written  a  libel  in  giving  the 
character  of  a  servant  has  acted  bona  fide  or  not,  it  may  make  a  very 
material  difference  whether  he  volunteered  to  give  the  character,  or  had 
been  called  upon  so  to  do.  At  all  events,  when  he  volunteers  to  give 
the  character,  stronger  evidence  v^^ill  be  required  that  he  acted  bona  fide, 
than  in  the  case  where  he  has  given  the  character  after  being  required 
so  to  do. 

Rule  refused. 


LINDENAU  V.  DESBOROUGH— p.  586. 

It  is  the  duty  of  a  party  effecting  an  insurance  on  life  or  property,  to  communi- 
cate to  the  underwriter  all  material  facts  within  his  knowledge  touching  the 
subject  matter  of  the  insurance;  and  it  is  a  question  for  the  jury  whether  any 
particular  fact  was  or  was  not  material. 

Assumpsit  against  the  secretary  of  the  Atlas  Insurance  Company, 
on  a  policy  of  insurance  on  the  life  of  the  Duke  of  Saxe  Gotha.  Plea, 
the  general  issue.  At  the  trial  before  Lord  Tenterden  C.  J.,  it  appear- 
ed that  in  1824  an  insurance  was  effected  on  the  life  of  the  Duke  with 
the  Union  Assurance  Company.  That  company  had  an  agent  in  Ger- 
many, who,  on  behalf  of  his  principals,  submitted  certain  questions  to 
the  physicians  of  the  duke,  many  of  them  as  to  specific  diseases,  and  his 
habits  of  life;  and  the  last  was,  "  Is  there  any  other  circumstance  with- 
in your  knowledge  which  the  directors  ought  to  be  acquainted  with  ?" 
and  this  was  answered  in  tlie  negative.  Tliere  was  als'o  a  private  certi- 
ficate sent  by  the  agent  to  the  directors  in  answer  to  their  enquiries  as 
to  certain  points.  In  this  also  there  was  a  general  question.  *'  Do  you 
know  any  other  circumstance  which  ought  to  be  communicated  to  the 
directors?"  which  was  answered  as  follows:  "Agreeably  to  our  infor- 
mations, the  duke  has  led  a  dissolute  life  in  former  days,  by  which  he 
has  lost  the  use  of  his  speech,  and,  according  to  some  informations,  also 
that  of  his  mental  faculties,  which,  however,  is  contradicted  by  the  me- 


8  Barnewall  &  Cresswell,  586.  307 

dical  men;  and  as  little  as  we  believe  that  this  has  any  influence  on  his 
natural  life,  we  find  it  our  duty  to  mention  it."     The  physicians  in  one 
of  their  answers  said  the  duke  was  hindered  in  his  speech,  but  did  not 
mention  the  state  of  his  mental  faculties.     An  application  was  made  to 
the  Union  to  insure  a  further  sum  on  the  duke's  life;  but  that  being  con- 
trary to  their  general  rules,  their  agent  handed  over  the  proposal  to  the 
Atlas,  and   at  the  same  time  gave  the  latter  company  the  private  an- 
swers received  from  their  agent  in  Germany.     The  plaintiff  signed  the 
usual  declaration,  and  declarations  by  the  duke's  physicians  were  made 
to  the  Atlas  similar  to  those  made  to  the  Union.     Upon  receiving  these 
documents  the  Atlas  entered  into  the  policy.     In   1S25  the  duke  died, 
and  it  was  then  discovered  that  there  had  existed  in   his  head  for  many 
years  a  large  tumour  pressing  on  the  brain,  to  which  the  loss  of  speech 
and  mental  faculties  might  be  attributed;  but  all  the  medical  testimony 
went  to  establish  that  the  symptoms  during  the  duke's  life  were  not 
such  as  were  likely  to  excite  suspicion  that  such  a  tumour  existed,  or 
that  he  was  afflicted  with  any  particular  disorder  tending  to  shorten  life. 
One  foreign  physician,  however,  said,  that  had   he   been   consulted  he 
should  have  thought  it  right  to  state  that  he  attributed  the  loss  of  speech 
to  a  paralysis  of  tlie  organs  of  speech.     And  an  English  surgeon  called 
for  the  plaintiff,  on  cross-examination  said  he  should,   in  answer  to  the 
general  question,   "Whether  he  knew   any  other    circumstances  that 
ought  to  be  communicated  to  the  directors?"  have  thought  it  right  to 
mention  the  state  of  the  duke's  mental  faculties.     Upon  hearing  this 
evidence  Lord  Tcnterden  told  the  plaintiff's  counsel  lie  thought  it  made 
an  end  of  his  case;  and  he  should  leave  it   to  the  jury  to  say  whether 
there  were  any  facts  material  to  be  known  which  were  not  mentioned 
to  the  assurers,  and  that  if  there  were,  the  policy  was  void.   The  plain- 
tiff's counsel  thereupon  elected  to  be  nonsuited,  leave  being  given  to 
him  to  move  for  a  new  trial,  on  the  ground  of  misdirection, 

Brnu^ham  novv  moved  accordingly,  and  referred  to  Mayne  v.  Wal- 
ter^ Park,  Ins.  531;  Ihii^utnin  v.  Ruf/leij,  G  Taunt.  ISG;  Carter  v. 
Jioehm,  3  Burr.  1910;  Haywood  v.  liod^ers,  4  East,  590;  Ross  v. 
Bradshata,  1  W.  Bl.  312;  Bnfe  v.  Turner,  G  Taunt.  o3S. 

Lord  Tkntkkdkn  C.  J,  At  the  trial  before  me  amongst  other  de- 
positions tliat  of  a  foreign  pliysician  named  Stark  was  read,  wherein  he 
stated  that  he  would  have  certified  that  the  duke  was  in  bodily  health, 
but  that  he  would  not  have  failed  to  observe  that  he  laboured  under  an 
inability  to  speak,  which  he  attributed  to  a  paralytic  state  of  the  nerves 
of  the  organs  of  speech.  In  addition  to  this,  Mr.  Cireen,  a  surgeon, 
stated,  that  if  consulted  he  should  have  thought  it  right  to  mention  the 
state  of  the  duke's  mental  faculties;  whcrc-upon  I  expressed  an  opinion 
that  the  cause  was  at  an  end,  and  said  that  1  should  direct  the  Jury  to 
find  for  the  defendant  if  they  thought  the  plaintiff  had  fiilcd  to  com- 
municate to  the  insurers  any  material  circumstance  within  his  knowledge. 
The  only  question  now  is,  whether  that  direction  would  have  been  cor- 
rect or  not  ?  At  the  lime  of  the  trinl  I  had  in  my  recollection,  although 
not  very  accurately,  the  case  of  Morrison  v.  Musprall,  A  Ding.  60, 
which  was  tried  before  me  at  Lincoln.  V»y  the  print<!(l  report  it  appears 
that  in  April  1823  an  insurance  was  effecleil  upon  tlu^  life  of  a  laiiy,  who 
at  the  end  of  18'J2  Ii:m1  suffered  fioni  a  pulmonary  attack,  and  was  atten- 
ded by  a  surgeon.  In  Miirch  isj.'fa  niediral  praclitiotier  who  had  known 
her  for  some  year.-*^  hut  did  not  attend  her  during  that  illness,  was  sent 


308  Ijndl:nau  7\  Di:sBououiiii.  M.  T.  182tS. 

lor  (o  rxamitu'  licr  willi  a  view  to  cno('Uiij>;  tlic  insurance  in  question  j 
and  l»e  corlilicd  llial  (slie  was  in  good  heallli.  In  18i24  she  died  of  a 
l)ulmonary  disease.  I  left  it  to  the  jury  generally  to  say  whether  any 
misrepresentation  had  heen  made;  and  the  jury  having  found  a  verdict 
for  the  plaintiff,  the  Court  of  Common  Pleas  granted  a  new  trial,  on  the 
ground  that  the  jury  ought  to  have  heen  called  upon  to  say  whether  it 
was  material  for  the  defendants  to  have  heen  made  acquainted  with  the 
illness  of  the  lady  in  1822.  In  the  present  case,  the  insurance  was  upon 
the  life  of  a  foreigner.  It  appeared  that  a  previous  insurance  had  been 
eirected  with  an  ollicc  that  had  an  agent  abroad.  That  office  was  reques- 
ted to  make  a  further  insurance,  and  being  unwilling  to  do  so,  the 
secretary  handed  over  to  the  defendant  the  certificate  received  from 
their  foreign  agent.  If  that  had  distinctly  disclosed  the  fact  now  in 
(jucstion,  I  am  not  prepared  to  say  that  the  defendant  would  have  had 
any  ground  of  complaint;  but  the  state  of  the  duke's  faculties  is  not  dis- 
tinctly stated  in  that  certificate.  Then  it  is  said  that  the  party  is  not 
hound  to  do  more  than  answer  the  questions  proposed,  unless  he  can  be 
charged  with  some  fraudulent  concealment.  Admittin";  this  not  to  fall 
within  an)'  of  the  specific  questions,  which  is  not  by  any  means  clear, 
still  the  general  question  put  by  the  office  requires  information  of  every 
fact  which  any  reasonable  man  would  think  material.  It  certainly 
seems  to  me  that  the  circumstances  proved  as  to  the  state  of  the  Duke 
of  Saxe  Gotha's  mental  faculties  were  material;  and,  upon  the  authority 
of  the  cases  of  Morrisoyi  v.  Muspralt  and  Biife  v.  Turner,  I  think  I 
should  not  have  done  wrong  in  leaving  the  case  to  the  jury  in  the  manner 
proposed  at  the  trial. 

Bayley  J.  I  think  that  in  all  cases  of  insurance,  whether  on  ships, 
houses,  or  lives,  tlie  underwriter  should  be  informed  of  every  material 
circumstance  within  tiic  knowledge  of  the  assured;  and  that  the  proper 
question  is,  Whether  any  particular  circumstance  was  in  fact  material  ? 
and  not  whether  the  party  believed  it  to  be  so.  The  contrary  doctrine 
would  lead  to  frequent  suppression  of  information,  and  it  would  often  he 
extremely  difficult  to  shew  that  the  party  neglecting  to  give  the  informa- 
tion thought  it  material.  But  if  it  bo  held  that  all  material  facts  must 
be  disclosed,  it  will  be  the  interest  of  the  assured  to  make  a  full  and  fair 
disclosure  of  all  the  information  within  their  reach.  Besides  the  cases 
already  mentioned,  there  are  others  cstablisliing  that  the  concealment  of 
a  material  fiict,  although  not  fraudulent,  is  sufficient  to  vitiate  a  policy  on 
a  ship.  On  these  grounds  and  authorities,  I  am  of  opinion  that  the 
proper  question  for  the  jury  was  not  whether  the  party  believed  the  in- 
formation withheld  to  be  material,  but  whether  it  was  in  fact  material. 

LiTTLEDALE  J.  I  am  of  the  same  opinion.  It  is  the  duty  of  the 
assured  in  all  cases  to  disclo.«e  all  material  facts  within  their  knowledge. 
In  cases  of  life  insurance  certain  specific  questions  are  proposed  as  to 
points  affecting  in  general  all  mankind.  But  there  may  be  also  circum- 
stances afTccling  pciriicuhir  individuals  which  are  not  likel}'  to  be  known 
to  the  assurers,  and  which  had  they  been  known  would  no  doubt  have 
been  made  the  subject  of  specific  enquiries.  The  general  question  ap- 
pears to  have  been  proposed  in  order  to  meet  such  cases,  and  I  think 
the  question  on  such  a  policy  is  not  whether  a  certain  individual  thought 
a  particular  fact  material,  but  whether  it  was  in  truth  material,  and  of  that 
thejur}'  are  by  law  constituted  the  judges.  I  therefore  think  the  proposed 
direction  would  have  been  riglit,  and  that  the  nonsuit  ought  not  to  be  dis- 
turbed. Rule  refused. 


8  BaRNEWALL  &  CUESSWELL,  598.  309 

The  KING  V.  The  Justices  of  LANCASHIRE.(«)— p.  593. 

By  the  statute  4  G.  4.  c.  95.  s.  87.  a  right  of  appeal  is  given  in  certain  cases,  it 
the  party  gives  notice  within  six  days  after  the  cause  of  comphiint  arises.  Two 
justices  having  made  an  order  upon  the  surveyors  of  the  roads  in  a  township  to 
perform  a  certain  part  of  the  statute  duty  on  a  turnpike  road  running  through 
the  township,  and  to  pay  to  the  surveyor  of  that  road  a  certain  part  of  the  money 
received  as  a  composition  for  statute  duty:  Held,  that  the  cause  of  complaint 
did  not  arise  until  a  copy  of  the  order  in  writing  had  been  served,  and  that 
notice  of  appeal  given  within  six  days  from  that  time  was  valid. 

(a)  This  case  was  heard  and  determined  at  the  sittings  in  banc,  after  last  term. 


CROWDER  and  Another  v.  P.  LONG,  Gent.,  one,  &c.— p.  598. 

A  fieri  facias  issued  against  the  goods  of  A.  The  goods  were  seized  by  the  bailiff. 
The  execution  creditor  authorised  the  bailiff  to  quit  possession,  the  debtor  con- 
senting that  he  might  return  at  any  time  and  sell  the  goods.  The  bailiff  ac- 
cordingly gave  up  possession,  and  at  the  end  of  some  months  returned,  and 
notice  of  sale  was  given.  Before  the  sale,  another  fieri  facias  issued  at  the  suit 
of  a  second  creditor.  To  that  writ  the  sheriff  returned  nulla  bona.  The  second 
creditor  brought  an  action  for  a  false  return,  and  recovered  the  value  of  the 
debtor's  goods  against  the  sheriff.  The  sheriff,  having  previously  paid  the  value 
of  such  goods  to  the  creditor  under  the  first  fi.  fa.,  brought  an  action  to  recover 
from  him  that  money:  Held,  that  he  was  entitled  to  recover  the  same,  unless 
it  were  shewn  by  the  defendant  that  at  the  time  when  the  sherift'  made  the 
payment  he  was  acquainted  with  the  fact  of  the  misconduct  of  his  officer,  and 
that,  as  between  the  sheriff  and  the  execution  creditor,  the  act  of  the  bailiff 
was  not  to  be  considered  the  act  of  the  sheriff,  so  as  to  fix  the  latter  with  know- 
ledge of  the  misconduct  of  his  officer. 

Assumpsit  for  money  had  and  received.  Pica,  general  issue.  At  the 
trial  before  Lord  Tenterden  C.  J.,  at  the  London  sittings  after  last  term, 
the  following  appeared  to  be  the  facts  of  the  case:  In  1825  the  plaintiffs 
were  sheriffs  of  London.  The  defendant  was  an  attorney,  and  in  No- 
vember in  that  year,  one  Rowley  was  indebted  to  him  in  a  large  sum. 
Rowley  also  had  a  creditor  of  the  name  of  Rounds,  and  having  been 
pressed  for  payment,  consulted  the  defendant  Long  professionally  on  the 
subject.  The  defendant  advised  Rowley  to  execute  to  him,  the  defuiulant, 
a  warrant  of  attorney  to  confess  judgment;  and,  at  the  dcfeiuhiut's  sug- 
gestion, one  Jackson,  an  attorney,  was  employed  to  prepare  the  warrant 
of  attorney.  On  tiie  ISth  of  November,  Rowley  executed  the  warrant 
of  attorney  for  securing  the  sum  of  AMI.  9.V.,  and  on  the  same  day  judg- 
mcnt  was  entered  up,  and  a  writ  of  fi.  fa.  issued  against  the  goods  of 
Rowley,  returnable  on  Monday  next  after  fifleen  days  of  St.  Martin. 
The  writ  wa.-^  delivered  to  one  Denham,  an  officer  of  the  plaintiffs,  and 
he  by  virtue  of  that  writ  seized  the  goods  of  Rowley.  On  the  2CA\\  of 
November  lh25,  .lackson  directed  Denham,  on  payment  of  the  sheriff's 
poundage  and  officer's  fees,  to  discharge  the  goods  of  Rowhiy  taken  in 
execution,  and  leave  the  warrant  in  the  hands  of  one  Wood.  Wood  was 
a  servant  of  Rowley.  Rowley  signed  a  consent  in  writing  that  the  plain- 
tiffs and  their  officer  might  hold  possession  of  his  goods,  and  that  they 
migiit  continue  in  such  possession  or  re-enter  after  the  writ  was  returna- 
ble, and  that  they  might  sell  on  thr  premises,  and  Ihal  he  would  pay  all 
expenses  attending  the  sale.     Oi\  the  ^''ith  of  November  the  execution 


310  Chowdeu  v.  Long.  M.  T.  1828. 

was  witlulrnwii,  and  on  the  13th  of  December  Rowley  paid  the  sheriff's 
])ouiula2;e  to  Deiiham.   In  Hilary  term,  1S26,  Long,  the  defendant,  ruled 
the  plaiiitill's  to  return  the  writ,  and  they  returned  that  the  goods  re- 
mained in  their  liands  unsold  for  want  of  buyers.     In  May  1826  Long 
directed  tiie  ollicer  to  proceed  to  a  sale  of  the  goods,  and  on  the  26th  of 
that  month  notice  of  the  intended  sale  was  published,  and  on  the  27th 
Rowley's  goods  were  sold.     In  that  month  another  fi.  fa,,  at  the  suit  of 
one  T.  Wade,  was  issued  against  Ihe  goods  of  Rowley,  and  delivered  to 
the  plaintiti's  to  be  executed.     In  July,  after  the  sale  of  the  goods,  and 
whilst  the  proceeds  remained  in  the  hands  of  the  plaintifl's.  Wade  gave 
notice  to  them  not  to  pay  over  the  proceeds  of  the  sale  to  the  defendant 
Long.     Tlie  plaintifls  then  requested  Long  to  indemnify  them,  which 
he  refused  to  do.     In  November  1826,  the  plaintiffs  paid  over  to  the  de- 
fendant 200/.,  being  the  proceeds  of  the  sale,  and  returned  nulla  bona  to 
the  fi.  fa.  issued  at  the  suit  of  Wade.    The  latter  brought  an  action  against 
the  plaintiffs  for  a  false  return,  and  recovered  against  them  a  verdict  for 
200/. ;  and  they  paid  Wade  the  damages  and  95/.  for  costs.     The  present 
action  was  brought  by  the  plaintiffs  to  recover  from  the  defendants  the 
200/.  which  they  had  paid  him  as  the  proceeds  of  the  goods,  and  95/.,  the 
costs  incurred  in  the  action  brought  against  them  by  Wade.     It  was  ob- 
jected that  the  plaintiffs  were  not  entitled  to  recover,  because  they  must 
have  paid  the  money  to  the  defendant  with  a  full  knowledge  of  all  the 
facts.     First,  it  was  clear  that  Dcnham  was  acquainted  with  the  fact  of 
the  execution  having  been  withdrawn,  and  it  could  not  be  doubted  that 
he  had  communicated  that  fact  to  the  plaintiffs,  his  employers.     But, 
secondly,  assuming  that  he  had  not  done  so,  still  in  point  of  law,  the 
plaintiffs  must  be  taken  to  have  known  every  thing  that  their  officer 
knew;  for  the  act  of  the  officer  is  the  act  of  the  sheriff,  and  the  know- 
ledge of  the  officer  that  of  the  sheriff.      The  fact,  therefore,  of  the  execu- 
tion having  been  withdrawn  with  the  assent  of  the  defendant,  must  be 
taken  to  have  been  known  to  the  plaintiffs  at  the  time  when  they  made 
the  payment  to  the  defendant.     Lord  Tenterden  C.  J.  told  the  jury  that 
in  point  of  law  it  was  not  competent  to  a  creditor  to  put  in  an  execution, 
withdraw  it,  and  afterwards  renew  it.     When  the  execution  was  with- 
drawn by  Long  there  was  an  end  of  it.     Wade  became  entitled  to  recover 
against  the  sheriff  by  reason  of  the  defendant's  execution  having  been 
withdrawn  with  his  assent.      It  was  true  tliat  if  a  man  pays  money  with 
a  full  knowledge  of  all  the  facts,  he  cannot  recover  it  back  again.     The 
question  for  tlic  jury  was,  whether  the  plaintiffs  at  the  time  when  they 
made  the  payment  to  the  defendant  were  acquainted  with  the  fact  of  the 
execution  having  been  withdrawn  by  the  authority  of  the  defendant. 
Denham  undouljtedly  knew  that  fact,  and,  generally  speaking,  the  she- 
riffs are  liable  for  all  acts  done  by  the  officer  by  their  authority,  but  not 
for  acts  done  without  their  authority  at  the  request  of  an  execution  credi- 
tor.    He  directed  the  jury  to  find  for  the  defendant,  if  they  thought  that 
the  sheriffs  knew  every  thing  that  the  officer  knew;  but  if  not,  for  the 
plaintiffs.     The  jury  having  found  for  the  plaintiffs,  damages  186/., 

Joshua  Evans  now  moved  for  a  new  trial,  and  cited  Brisbane  v. 
Dacres,  5  Taunt.  143;  Jlndrew  v.  Hancock,  1  Brod.  &  B.  37;  Bram- 
ston  V.  Robins,  4  Bing.  11;  Milnes  y.  Duncan,  6  B.  &  C.  677;  Sky- 
ring  V.  Greenwood,  4  13.  &  C.  281;  JVoodgale  v.  Knatchbull,  2  T.  R. 
151 ;  Pechell  v.  Layton,  2  T.  R.  712;  Tyle  v.  Glade,  7  T.  R.  267;  Par- 
rolt  V.  Mu7pford,  2  Esp.  585;  Sluj-my  v.  Synith,  11   East,  25;  x^ck- 


8  Baunewall  &  Ckesswell,  598.  311 

worth  V.  Kempe,  Doug.  40;  Saunderson  v.  Baker,  3  Wils.  317;  Nori/i 
V.  Miles,  1  Campb.  3S9. 

Lord  Tenterden  C.  J.  I  should  be  sorry  to  break  in  upon  the  gen- 
eral rule  which  applies  to  actions  brought  against  a  sherifl  for  breach  of 
his  duty  in  executing  process,  that  the  act  of  the  bailiff  is  the  act  of  the 
sheriff.  But  I  think  that,  under  the  circumstances  of  this  case,  the  act 
of  the  oflScer  is  not,  as  between  the  sheriffs  and  the  defendant,  to  be  con- 
sidered the  act  of  the  sheriffs.  The  sheriffs  have  already  been  made 
answerable  for  the  misconduct  of  their  olEcer  in  the  action  brought 
against  them  by  Wade  for  a  false  return.  The  return  of  nulla  bona 
made  by  the  sheriffs  in  that  case  would  have  been  proper  if  the  execu- 
tion of  the  present  defendant  had  been  in  force  at  the  time  when  the 
writ  issued  at  the  suit  of  Wade;  but  the  defendant's  execution  was  not 
then  in  force,  because  the  officer  had  improperly  quitted  possession,  and 
upon  that  ground  Wade  recovered  from  the  present  plaintifl's  the  value 
of  the  goods  seized  by  the  sheriffs.  The  question  which  arose  incidentally 
in  that  case  was,  whether  Denham  had  been  guilty  of  misconduct;  and 
in  the  result  it  was  found  that  he  had.  The  question  now  is  very  dif- 
ferent. It  appeared  that  the  act  of  the  officer  was  done  without  the 
knowledge  of  the  sheriffs,  but  with  the  full  knowledge  and  assent  of  the 
defendant;  and  that  the  sheriffs  were  compelled  in  consequence  of  that 
misconduct  of  the  officer  so  authorized  by  the  defendant,  to  pay  to  a  third 
person  the  value  of  those  very  goods,  which  they  had  already  paid  to 
the  defendant.  Now  it  is  quite  clear  that  the  sheriffs  are  entitled  to  re- 
cover the  money  so  paid  to  the  defendant,  unless  at  the  time  when  such 
payment  was  made  they  were  acquainted  witli  the  fact  of  the  misconduct 
of  their  officer.  I  think  that  as  between  these  parties,  the  act  of  the 
officer  is  not  to  be  considered  the  act  of  the  sheriffs,  so  as  to  make  the 
latter  by  implication  parties  to  the  misconduct  of  the  officer;  but  that  it 
was  incumbent  upon  the  defendant  to  shew  that  the  sheriffs  had  actual 
knowledge  at  the  time  when  they  made  that  payment. 

Bayley  J.  According  to  the  general  rule,  the  act  of  the  officer  is, 
in  point  of  law,  the  act  of  the  sheriff.  But  the  present  case  is  an  ex- 
ception to  that  rule.  If  the  officer  be  guilty  of  misconduct,  and  that 
misconduct  is  produced  by  the  act  of  the  execution  creditor,  it  is  not 
competent  to  the  latter  to  say  that  the  act  of  the  officer  done  in  breach  of 
his  duty  to  the  sheriff,  and  inrluccd  by  the  execution  creditor,  is  the  act 
of  the  sheriff.  The  facts  of  this  case  arc,  an  execution  issued  at  the 
suit  of  the  present  defendant  against  Rowie}'.  That  execution,  for  any 
thing  the  sheriff  knew,  was  an  honest  execution.  It  was  the  (hity  of 
the  officer,  as  between  liimsclf  and  the  sherifl",  to  seize  the  goods  of  the 
debtor,  and  sell  them.  But  the  present  defendant  (the  execution  credi- 
tor) desired  the  officer  not  to  sell,  but  to  go  out  of  possession,  and  ho 
did  go  out  of  possession.  That  was  misconduct  in  tlie  sheriffs'  officer, 
hut  who  induced  that  misconduct?  The  jjrcscMit  defendant.  Tlie  sheriff 
was  not  privy  to  it.  Thatbcingso,  it  would  be  contrary  to  all  princi- 
ple to  permit  the  defendant  to  say  that  that  was  tlic  act  of  the  sheriff. 
In  May  the  officer  re-enters,  and  is  directed  by  the  defendant  to  sell 
the  goods.  But  in  that  month  another  execution  issuctl  at  the  suit  of 
Wade,  and  he  insisted  that  the  goods  of  the  debtor  were  his.  The  sheriff 
returned  nulla  bona  to  Wade's  writ,  and  he  brought  an  action  against 
the  sheriff  for  a  false  return,  to  try  the  validity  of  Long's  execution. 
The  question   in  that  action  was,   whether  Long  or  Wade  was  entitled 


M2  DoK  d.  LiixiiJiHi)  V.  Lawson.  M.  T.  1828. 

to  (lie  prcfcroiico.  It  was  ilccidcd  that  Watlc  was  entitled  to  the  pre- 
ference. Then,  in  conscfitienoe  of  the  misconduct  of  the  ollicer,  so 
induced  hy  .Lonjj,  the  sheriff  was  compelled  to  pay  Wade  the  value 
of  the  goods  wliich  ho  had  previously  paid  to  Lonp;.  Considering 
that  there  was  collusion  hotwccn  Long  and  the  ollicer,  the  sherift' 
ought  not  (o  he  comjicUed  to  pay  the  value  of  the  debtor's  goods  to 
hoth  the  creditors.  I  think,  considering  this  as  the  action  of  the 
sherilTs,  they  arc  entitled  to  recover  the  money  which  Long  ought 
never  to  have  received.  If  it  could  be  shewn  to  be  the  action  of  the 
officer,  then,  perhaps,  the  rule  in  pari  conditione  melior  est  conditio 
possidentis  would  prevail.  But  here  the  money  was  paid  by  the  sheriff 
to  the  defendant. 

LiTTLKDALK  J.  I  am  not  disposed  to  break  in  upon  the  rule  that  the 
act  of  the  oHlcer  must,  in  point  of  law,  be  considered  the  act  of  the 
slierid.  But  we  shall  not  break  in  upon  that  rule  by  our  decision  in  this 
case.  The  rule  is,  that  the  act  of  the  officer,  in  execution  of  the  au- 
thority received  from  the  sheriff,  is  the  act  of  the  sheriff.  But  here  the 
act  done  by  the  officer,  was  an  act  done,  not  in  pursuance,  but  in  direct 
contravention  of  that  authority;  for  the  officer  had  authority  from  the 
sheriff  to  seize  and  sell  the  goods  of  the  debtor,  but  he  seized,  and 
then  gave  up  possession,  and  the  sheriff  was  thereby  compelled  to  pay 
the  value  of  the  goods  seized  to  Wade.  The  sheriff,  at  the  time  when 
he  paid  the  value  of  the  goods  to  the  defendant,  had  no  knowledge  of 
the  misconduct  of  his  officer.  That  misconduct  was  induced  by  the  act 
of  the  defendant.  As  between  the  sheriffs  and  the  defendant,  therefore, 
the  act  of  the  officer  by  which  the  sheriff  has  been  damnified,  was  the 
act  of  the  defendant,  and  not  of  the  sheriff. 

Rule  refused. 

See  Coof:  v.  Palmer,  6  B.  &  C.  739. 


DOE  on   the  demise  of  LIDGBIRD  v.  LAWSON  and   Another.— 

p.  G06. 

A  fine  was  levied  by  A.  in  Hilary  term,  1821.  A.  and  B.  claimed  to  be  heir  at 
law  of  C.  There  being  several  actions  depending  to  try,  whether  A.  or  B. 
was  heir  at  law,  it  was  agreed  that  the  rent  should  be  paid  into  a  banker's,  to 
abide  the  event  of  one  of  those  causes.  The  cause  was  decided  in  favour  of 
A.  in  1823,  and  the  rent  paid  into  the  banker's  was  then  paid  over  to  him.  It 
included  half  a  year's  rent  due  from  the  tenant  on  the  25th  of  March  1821 : 
Held,  in  an  ejectment  brought  subsequently  on  the  demise  of  B.,  in  which  he 
succeeded  in  shewing  that  he  was  heir  at  law  of  C,  that  A.  had  no  seisin  in 
Hilary  term  1821,  when  the  fine  was  levied,  and  consequently  that  the  fine 
did  not  operate  as  a  bar  to  the  ejectment. 

Ejectment  for  lands  in  the  county  of  Kent.  At  the  trial  before 
Lord  TenterdcJi  C.  J.,  at  the  Summer  assizes  for  the  county  of  Kent, 
182S,  the  following  appeared  to  be  the  facts  of  Ihe  case; — The  lessor  of 
the  plaintiff  claimed  the  premises  in  question  as  heir  at  law  of  Francis 
Lidgbird,  who  died  in  October  1820,  seised  of  the  premises  in  ques- 
tion; the  defendant,  as  devisee  of  Henry  Wilding;  and  the  question 
upon  the  merits  was,  whether  the  lessor  of  the  plaintiff,  or  Henry 
Wilding,   was  the  heir  at  law  of  Francis  Lidgbird.     The  lessor  of  the 


8  Barnewall  &  Cresswell,  800.  313 

plaintiff  having  proved  his  pedigree,  and  thereby  established   that  he 
was  the  heir  at  law  of  F.  Lidgbird,  the  defendant  set  up  a  fine  levied 
by  Henry  Wilding  in  Hilary  term   1821,  with  proclamations   made  in 
that  and  the  three  following  terms;  and   in   order  to  slicw  that  Henry 
Wilding,   the  party  levying  the  fine,   was  at  that  time  seised  of  an  estate 
of  freehold  in  the  premises  in  question,   proved  that  Wilding,  in  April, 
1S21,   having  distrained  upon  the  tenant  of  the  premises  in  question  for 
half  a  year's  rent,   due  at   Lady-day  1821,   tlie   tenant  re])levied:  and 
there  being  other  actions  depending  between  Wilding  and  other  tenants 
of  lands,   of  which  F.  Lidgbird  died  seised,   in  which  it  was   intended 
to   try  the  question.   Whether   the  lessor  of  the  plaintiff,  or  Wilding 
was  the  heir  at  law  of  the  person  last  seised,  it  was  agreed  between  the 
respective  attorneys  that  one  cause  only  should   be  tried,  and  that  the 
rents  should  be  paid  into   a   banker's  to  abide  the  event  of  that  cause- 
In  pursuance  of  that  agreement,  the  half  year's  rent,  due  at  Lady-day 
1821,  was,  in  March  1822,  paid  into  a  banker's,  and  it  was  agreed  that 
it  should  remain  there  until  after  the  trial  of  the  cause,  and  then  be  paid 
to  Wilding,   the   defendant,   in   replevin,  in   case  a  verdict  should  be 
found  for  him,  or  otherwise  to  the  plaintiff.     That  cause  was  tried  at 
the  Summer  assizes,  1823,  and  a  verdict  was  found  for  the  defendant, 
and  the  rent  was  then  paid  over  to  the  executors  of  Wilding,  he  having 
died  in  the  meantime.     It  was  insisted,  on  the  part  of  the  defendants, 
that  as  the  rent  which   became  due  on  the  25th  March  1821  had  been 
paid  to  the  executors  of  Wilding,  he  must  be  taken  to  have  been  seised 
of  a  freehold  by  relation,  from  the  time  of  the  death  of  F.  Lidgbird  ia 
October  1820,  and,  consequently,  that  he  was  so  seised  in  Hilary  term 
1821,  when  the  fine  was  levied,  and  that  an  entry  ought,  therefore,   to 
have  been  made  to  avoid  it.     The  counsel  on  the  other  side  relied  upon 
Lord  Townsend  v.  t^she,{a)  as  an  authority  to  shew  that  a  fine  levied 
before  any  receipt  of  rent,  by  a  person  who  had  taken   possession  bj' 
wrong,  has  no  effect,  and  that  perception  of  the  rent,  after  the  levying 
of  the  fine,  though  for  a  period  antecedent  to  the  fine,  was  no  evidence 
of  a  seisin,  even  at  the  lime  when  that  rent  became  due.     Lord  Tcii- 
terde'n  C.  J.  was  of  opinion,   tliat  Wilding,   not  having  actually  receiv- 
ed any  rent  at  tlie  time  when   the  [\nQ  was   levied,  had  no  seisin.     A 
verdict  having  been  found  for  the  lessor  of  the  plaintiff. 

Sir  James  Scarlett,  on  a  former  ilay  of  the  term,   moved    for  a  new 
trial,  and  cited  Lord  Tuwnscnd  v.  .I'i/ic,  3  Alk.  33(i. 

Ciw.  adv.  vu/l. 
Lord  Tenterhen  C.  J.  now  delivered  the  judgment  of  the  Court. 
The  case  of  Lortl  Toicnsend  v.  t.Qshe,  was  cited  at  the  trial  to  shew 
that  the  fine,  under  the  |)ccidiar  circumstances  of  tliis  ca.se,  did  not 
operate,  because  the  party  who  levied  it  had  not  then  any  seisin;  and 
tliat  case  seems  to  be  in  point.  There  the  lines  were  levied  of  shares 
in  tiie  New  River,  in  Hilary  term,  1733.  y\t  ihat  time  the  parlies 
who  levied  tlie  fine  had  not  received  any  ])rofitsof  those  slian,'.'^,  but  on 
the  23d  Feiiruary  1733  they  received  from  the  New  River  ("ompany  thu 
first  payment,  which  was  due  on  the  25th  December  preceding,  and 
they  afterwards  continued  receiving  the  rents  (ill  1740.  It  was  con- 
tended, that  as  no  profits  had  been  received  till  after  the  fine  Icvierl, 
there  was  no  disseisin,  and,  consequently,  that  the  fine  did  not  operate. 

(«)  5  Atk.  "36,  more  fally  reported  in  Cruibc,  Dij;.  tit.  Ij.  r.  5.  s.  31-.  vol.  v.  121. 
VOL.    XV.  40 


r,\  I  NouroN  j\  PicKERiNc.  M.  T.  1828. 

'I'd  lliis  it  was  aiiswcrcil,  that  the  first  payment,  though  not  received 
till  February,  was  due  at  Christmas,  and  that  the  rcceij)t  should  relate 
to  tlic  time  when  tlie  money  was  due.  Upon  this  Lord  Ilarihvickc 
said:  "  The  answer  given  on  the  plaint ifi's' part  was,  that  no  rent  was 
received  by  the  defendants  till  after  the  lines  levied;  and  this  1  think  a 
full  answer,  for,  till  then,  there  could  be  no  disseisin.  The  profits  were 
in  the  hands  of  the  company  at  the  time  of  the  fines  levied;  and  they 
must  be  considered  as  received  by  them  for  the  party  who  had  right,  and 
not  for  a  wrongdoer.  Nor  can  the  subsequent  payment  have  relation 
to  the  receipt  before  that  time:  for  fictions  and  relations  in  law  arc  good 
to  support  right,  but  not  to  work  wrong."  Now  that  case  is  an  autho- 
rity to  shew  that  the  payment  in  1823,  of  the  rent  which  became  due  at 
l..ady-day  1821,  was  no  evidence  of  a  seisin  in  Wilding,  even  al  the 
lime  when  the  rent  became  due.  Here  it  was  insisted  that  it  was  evi- 
dence of  a  seisin  in  Wilding  in  Hilary  term  1821,  before  it  became 
due.  Upon  the  authority  of  that  case  we  think  that  Wilding  was  not 
seised  when  he  levied  the  fine;  and,  consequently,  that  the  fine  did  not 
operate,  antl  was  no  bar  to  the  prc.'^cnt  action.  ^ 

Rule  refused. 


NORTON  V.  PICKERING.— p.  (510. 

A  bill  was  drawn  by  A.  upon  B.  for  the  accommodation  of  C,  who  indorsed  it  for 
value  to  D.  Neither  A.  nor  C.  had  any  effects  in  the  hands  of  B.  The  bill 
%vas  dishonoured  by  B. :  Held,  that  the  drawer  was  entitled  to  notice. 

This  was  an  action  by  the  plaintiO',  as  the  indorsee,  against  the  defend- 
ant as  drawer  of  tlie  following  bill  of  e::change:  •'  Two  months  after  date 
pay  to  niyself,  or  order,  50/.,  value  received.''  It  was  accepted  by 
Sheppard  and  Co.,  indorsed  by  the  defendant  to  Naylor  and  Ellis,  and 
by  them  to  the  plaintifl".  At  the  tiial  before  Bayleyi.,  at  the  Summer 
assizes  for  the  county  of  York,  1828,  it  appeared  that  Naylor  and  Ellis, 
being  indebted  to  the  plaintifi'  for  goods  sold  by  him,  requested  the  de- 
fendant to  draw  and  indorse  Ihc  bill,  and  Sheppard  and  Co.  to  accept 
the  same;  and  NajMor  and  Ellis  then  indorsed  the  bill  to  the  plaintifi'. 
Neither  Naylor  and  Ellis  nor  the  defendant  had  any  elfccts  in  tlie  hands 
of  Sheppard  and  Co.  during  the  time  the  bill  was  running.  No  notice 
of  the  dishonor  of  the  bill  was  given.  The  learned  judge  was  of  opinion 
thai  the  defendant  was  entitled  to  notice  of  dishonor,  and  nonsuited  the 
plaintifi,  but  reserved  liberty  to  him  to  move  to  enter  a  verdict. 

Milner  now  moved  accordingly,  referring  to  Cory  v.  Scott,  3  B.  &  A. 
GIO;  IValioyn  v.  .SV.  Quinlin,  1  B.  &  P.  052. 

Lord  Tkmichden  C.  J.  I  think  the  case  of  Cory  v.  Scott,  3  B.  & 
A.  G19,  was  properly  deciiled,  and  th:it  it  must  govern  the  present  case. 
It  may  be  questionable  whether  it  might  not  have  been  more  conducive 
to  the  interests  of  commerce  to  have  decided  that  the  holder  of  a  bill  is 
not  at  liberty  to  give  evidence  of  any  circumstances  to  excuse  the  want 
of  notice.  Here  the  defendant  does  not  seek  to  avail  himself  of  cir- 
cumstances dehors  the  bill.  He  being  drawer  of  the  bill,  by  the  law  of 
merchants,  was  entitled  to  notice  of  dishonor.  Tlie  j)laintifrdoes  attempt 
to  get  rid  of  the  law  merchant,  for  he  says  the  acceptor  had  no  effects  of 
the  drawer  in  his  hands.  I  think  the  defendant  was  entitled  to  notice  of 
dishonor,  and  that  the  nonsuit  was  right. 

Rule  refused. 


8  Barnewall  &  Cress  WELL,  612.  315 

HOLDEKNESS  and  Another,  Assio;nees  of  FOXTON,   v.  SHACK- 
ELS.— p^  612. 

A.,  B.,  and  C,  together  with  others,  were  part-owners  of  a  ship  eng;aged  in  the 
Avhale  fishery.  The  usual  mode  of  managing  the  cargo  was,  that  on  the  arrival 
of  the  vessel  at  her  homeward  port,  the  whalebone  was  taken  into  the  pos- 
session of  B.,  and  sold  by  him,  and  the  proceeds  were  applied  towards  the  dis- 
charge of  the  exjjenses  of  the  ship.  The  blubber  was  deposited  in  a  warehouse 
rented  of  C.  by  the  owners  of  the  ship,  and  the  oil  produced  from  it  was  then 
put  into  casks,  each  owner's  share  being  weighed  out,  and  placed  separately  in 
the  warehouse,  in  casks  marked  with  his  initials.  After  the  division,  the  prac- 
tice was  for  the  warehouseman  to  deliver  to  the  order  of  each  part-owner  his 
share  of  the  oil,  unless  notice  was  given  by  the  ship's  husband  that  the  part- 
owner's  share  of  the  disbursements  had  not  been  paid.  In  that  case,  the  ware- 
houseman used  to  detain  the  oil  till  the  ship's  husband's  demand  had  been  satis- 
fied. The  ship  having  arrived  from  her  voyage  in  1825,  the  above  course  was 
followed.  The  share  weighed  out  and  set  apart  for  A.  was  twenty-nine  tons, 
which  was  stowed  in  the  warehouse  in  casks,  which  had  A.'s  initials  put  on 
them.  In  January  1826,  A.  became  bankrupt.  Twenty  tons  of  the  oil  had  been 
delivered  to  A.  before  his  bankruptcy;  the  remaining  nine  tons  remained  in  the 
warehouse  at  the  time  of  his  bankruptcy.  In  January  1826,  the  warehouseman 
liad  orders  from  C,  the  ship's  husband,  not  to  deliver  to  A.  the  remaining  oil, 
as  his  share  of  the  disbursements  of  the  ship  had  not  been  paid:  Held,  in  an 
action  of  trover  brought  by  the  assignees  of  A  against  C,  for  the  residue  of 
A.'s  oil,  that  the  other  part-owners  had  originally  a  lien  on  it  for  his  share  of 
the  disbursements  of  the  sliip,  and  that  this  right  was  not  devested  by  the 
separation  of  A.'s  share  from  the  residue,  and  placing  it  in  casks  marked  with 
his  name. 

Trover  for  twenty  Ions  of  whale  oil,  of  the  value  of  1000/.  The 
first  count  of  the  declaration  alleged  the  property  to  belong  to  the  bank- 
rupt before  his  bankruptcy;  second  count  stated  the  property  to  be  in 
the  plaintiffs,  as  his  assignees.  Plea,  general  issue.  At  the  trial  before 
Buyley  J.,  at  the  last  Spring  assizes  for  the  county  of  York,  a  verdict  was 
found  for  the  plaintills,  damages  220/.  lOi.,  subject  to  the  o|)inion  of 
this  Court  on  the  tullowing  case: 

The  plaintiffs  were  the  assignees  of  Foxton,  under  a  commission  dated 
the  2d  of  May  1826,  and  their  title  to  sue  in  that  character  was  fidly  pro- 
ved. The  bankruj)t  Foxton,  jointly  with  one  Locking  and  the  defendant, 
and  some  other  persons,  was  part-owner  of  the  ship  Jane,  a  vessel  belong- 
ing to  Hull,  engaged  in  the  whale  fishery.  Locking  was  the  ship's  hus- 
band. The  usual  mode  of  managing  the  cargo  was  as  follows:  On  the  ar- 
rival (.f  the  vessel  at  Hidl  from  tlic  tishcry,  the  whalebone  was  taken  into 
the  possession  of  Lf)cking,  and  sohl  by  him  for  the  part-discharge  of  the 
expenses  of  the  ship.  TIk;  bhiblx-r  was  lai\ded  and  deposited  in  a  yard 
belonging  to  the  defendant,  in  which  were  several  warehouses,  each  of 
which  was  appropriated  to  a  particular  ship.  One  of  these  was  rented 
from  the  defendant  by  the  nwu('rs  of  the  ship  Jane,  and  appropriated 
exclusively  to  that  ship.  The  blubber  was  boiled  in  a  b()iling-hou.sc 
in  the  yard  by  one  Gilchrist  cmploycvl  at  the  defendant's  yard  as  fore- 
man, and  paid  by  the  owners  of  the  several  ships;  and  for  this  a  certain 
I)rice  per  Ion  was  charged  by  the  defendant.  The  blul)l)cr  being  then 
reducer!  into  the  shape  of  oil,  was  put  into  casks:  each  part-owner's 
share  was  then  weiglu'd  out,  and  |)lar(rd  sepualely  in  tlu;  warehouse 
rented  by  the  owners  of  the  sbiji;  and  the  particular  casks  containing 
"his  oil  were  marked  wilb  bis  initials  in  chalk.  (lilidirisl  kept  the  key 
of  the   warehouse,  and    livd    in    Ihi-  yud.      Alh-r   "ach    division,   the. 


316  HoLUEHNESS  V.  SlIACKELS.    M.   T.   182S. 

practice  was  for  him  to  deliver  to  tlic  scjiaratc  orders  of  ench  owner  the 
oil  helonging  to  them,  unless  previously  to  the  delivery  he  received  a 
notification  from  the  ship's  husi)and,  that  the  part-owner's  share  of  the 
dishursenients  had  not  been  ])aiil  to  him.  In  that  case,  he  used  to  de- 
tain the  oil  till  the  ship's  husband's  deinand  had  hcen  satisfied.  It  was 
ojilional  for  the  owner  to  have  liis  oil  in  his  own  or  the  sl)ij)'s  casks. 
In  the  latter  case,  he  was  to  send  away  the  oil  in  the  ship's  casks,  he 
returning;  tlic  casks  or  paying  for  them  when  wanted.  In  June  1825, 
the  shi))  Jane  arrived  with  a  cargo,  and  the  above  being  the  usual  course, 
was  followed  on  that  occasion.  The  share  weighed  and  set  apart  for 
the  bankrupt  Foxton,  before  his  bankruptcy,  was  twenty-nine  tons  and 
thirty-six  gallons.  Part  of  this  was  stowed  in  the  ship's  casks.  All  the 
casks  were  set  apart  in  the  ship's  warehouse,  and  had  the  bankrupt's 
initials  ujDon  them  in  chalk.  Foxton,  before  his  bankruptcy,  gave  vari- 
ous delivery-orders  to  Gilchrist,  under  which  twenty  tons  of  this  oil 
had  been  delivered.  The  remainder,  being  nine  tons  ihirty-six  gallons, 
being  all  in  the  ship's  casks,  remained  in  the  ship's  warehouse  at  the 
time  of  the  bankruptcy.  In  January  1826,  Gilchrist  had  orders  from 
Locking,  as  the  ship's  husliand,  not  to  deliver  to  Foxton  the  remaining 
oil,  as  his  share  of  the  disbursements  of  the  ship  was  not  paid.  Lock- 
ing, the  ship's  husband,  became  bankrupt  in  April  1826.  Foxton  stop- 
ped payment  in  January  182G.  There  were  two  accounts  between 
Locking  and  Foxton,  one  being  the  ship's  account,  and  the  other  a  ge- 
neral account-current.  In  the  ship's  account  it  appeared,  that  after  charg- 
ing every  disbursement  on  account  of  the  vessel,  as  if  they  had  actu- 
ally been  paid  by  him,  (except  the  rent  of  the  warehouse  and  the 
charges  of  boiling,  which  remained  due  to  the  defendant,)  and  after 
giving  credit  for  the  sale  of  the  whalebone,  and  a  small  portion 
of  oil,  there  remained  due  from  the  bankrupt  Foxton,  at  the  time 
of  his  bankruptc)'',  in  respect  of  his  share  of  the  ship,  the  sum  of 
5641.  \2s.  This  sum  was  due  to  the  defendant  and  the  other  own- 
ers. The  other  owners  have  paid  up  Foxton's  share  by  making 
deductions  from  balances  which  Locking  owed  them.  Locking  had 
not  i)aid  every  disbursement  before  he  failed  ;  he  has  paid  them 
since  by  money  received  from  the  other  owners.  Upon  the  general 
account-current,  there  was  a  balance  against  Locking  of  2G1/.  7*-  -l^^/. 
IJut  Foxton  had  credit  therein  for  two  of  his  own  acceptances  for  300/. 
and  450/.,  which  were  afterwards  dishonoured.  On  the  8lh  of  January 
last,  the  plaintiffs,  as  assignees  of  Foxton,  formally  demanded  posses- 
sion of  the  nine  Ions  thirfy-six  gallons  of  oil  from  the  defendant,  offer- 
ing to  pay  to  him  a  sum  which  exceeded  what  he  demanded  in  respect 
of  rent  and  charges  for  boiling  the  blubber.  This  sum  ho  had  himself, 
by  an  account  in  his  own  hanilwriling,  fixed  at  5'.)l.  G,s.  In  answer  to 
this  demand,  the  defendant  staled  that  he  wished  the  matter  to  stand 
over  for  a  few  days.  Accordingly,  on  the  31st  of  January,  the  plaintiff 
Holdcrncss  called  again  upon  the  defendant,  and  tendered  to  him  the 
sum  due  in  respect  of  his  demand  for  rent  and  boiling,  but  the  defend- 
ant then  absolutely  refused  to  receive  the  monies  or  give  up  the  oil.  He, 
however,  stated,  lliat  the  oil  was  in  his  possession  and  under  his  control, 
and  that  he  could  give  it  up  if  he  thought  proper;  but  he  added,  that 
liie  owners  of  the  Jane  had  instructed  him  not  to  do  so.  The  value  of 
ihf^  oil  so  rlctiiiiicd  was  220/.  lOs. 
'    j'J.  II.  .11  inson  fur  the  p'ainliffs.      The  defendants,  who  were  part- 


S  Bauxewall  6i  Chesswell,  612.  317 

owners  of  the  sliip,  had  clearly  no  lien  on  the  oil,  even  if  it  had  not 
been  separated  from  the  residue.  Secondly,  if  they  had  any  lien  in 
point  of  law,  still,  in  fact,  there  was  nothing  due  from  Foxton  at  the 
time  of  his  bankruptcy  to  the  other  part  owners.  Thirdly,  assuming 
that  there  was  such  a  debt,  and  that  the  part-owners  had  a  lien,  still  the 
separation  of  this  oil  from  the  residue,  and  the  putting  of  Foxton's 
name  on  the  casks  in  which  it  was  contained,  was  an  appropriation,  and 
vested  the  property  in  him.  He  cited  Srnilh  v.  De  Silvu,  Cowp.  469; 
Doddlnglonv.  Halleit,  1  Ves.  497;  ex  parte  Yoiuig,  2  Ves.  &B.  242; 
ex  parte  Harrison,  2  Rose,  B.  C.  76;  Harry  v.  Mangles,  1  Camp. 
452;  Stoveld  v.  Hughes,  14 East.  SOS;  Hammond y .Anderson,  1  Bos. 
&Pul.  N.  R.  G9. 

Parke  contra  was  stopped  by  the  Court. 

Lord  Tenterden  C.  J.  This  is  not  the  case  of  a  claim  of  lien  on 
the  share  of  the  ship,  but  a  claim  by  persons,  being  part-owners  of  a 
ship,  engaged  together  in  an  adventure;  and  the  subject-matter,  in  re- 
spect of  which  this  action  is  brought,  is  part  of  the  proceeds  of  that  ad- 
venture, viz.,  part  of  the  oil  which  had  been  obtained  on  a  fishing  voy- 
age. Now  it  is  clearly  established  as  a  general  principle  of  law,  that  if 
one  partner  becomes  a  bankrupt,  his  assignees  can  obtain  no  share  of  the 
partnership  cflect?,  until  they  first  satisfy  all  that  is  due  from  him  to 
the  partnership.  The  case  of  Smith  v.  De  Silva,  Cowp.  469.,  is  a  very 
entangled  case,  and  the  facts  stated  in  the  report  are  not  very  clear  or 
perspicuous.  It  appears  that  De  Silva  had  originally  made  advances, 
not  as  part-owner  of  the  ship,  nor  even  as  partner  in  the  adventure,  but 
as  a  person  appointed  by  all  the  j)art-owners  to  manage  the  adventure 
for  them,  rather  as  their  agent  than  as  their  partner.  He  afterwards 
acquired  an  interest  by  j)urch.asing  a  part  of  the  shij),  and  so  became  a 
partner  in  the  adventure;  but  he  was  not  an  original  partner.  Smith  v. 
De  Silva  may,  therefore,  have  been  properly  decided,  without  break- 
ing in  on  the  general  jjrinciple  to  which  I  have  adverted.  Then,  sup- 
posing that  the  partners  had  in  this  case  a  lien  originally,  has  any  thing 
happened  to  take  it  away  .''  First,  it  is  said  that  they  had  no  lien  against 
Foxton,  because  nothing  was  due  from  Foxton  to  the  then  jiart-owners; 
but  if  the  account  be  taken  as  between  Foxton  and  Locking  generally, 
there  can  be  no  question  Ihat  the  bankruj)t  was  indcl)tcil  to  tlic  other 
part-owners.  For  they  were  nlliinatcly  obliged  to  pay  the  expense 
which  had  been  incurred  before  the  bankruptcy.  The  next  point  turns 
on  the  separation  of  that  portion  of  the  oil  which  belonged  to  the  bank- 
rupt, upon  which  great  reliance  has  been  placed  on  the  part  of  the 
plaintifT.  It  has  been  said,  that  there  has  been  an  apj)roprialion  of  that 
cpiantily  of  oil  to  the  bankrujjt,  and  that  the  property  thereby  vested 
in  him,  and  cannot  be  devested.  But  in  order  to  decide  whether  the 
property  vested  in  him  or  not,  it  is  necessary  to  look  at  the  practice  of 
the  part-owners  of  this  ship  in  antecedent  voyages,  in  order  that  we  may 
know  what  was  the  effect  of  marking  particular  casks  with  the  initials 
of  any  of  the  part-owners.  The  case  states,  that  when  the  blubber  had 
been  reduced  into  oil,  each  part-owner's  share  was  weighed  out,  and 
placed  separately  in  the  warehouse  rented  by  the  owners  of  the  ship, 
and  the  particular  casks  containing  his  oil  were  marked  with  his  initials 
in  chalk;  that  (lilclnist  kept  the  key  of  the  warrhouse  and  lived  in  the 
yard;  that  after  each  division,  the  practice  was  for  him  ((lilchrist)  to  de- 
liver to  the  separate  orders  of  such   owners  the  oil  belonging  lo  Ihcm, 


318  HoLDKKNtss  r.  SiiACKLi.s.   iSI.  T.  1828. 

i 

unless,  pn.\  ioiisly  to  (he  tlelivcry,  lie  received  a  notification  from  the 
.ship's  luishaiul  that  the  part-owner's  share  of  the  dishursements  had  not 
been  paid  to  him.  In  that  ca8e  he  used  to  detain  the  oil  till  the  ship's 
luishand's  demand  had  been  satislied.  That  having  been  the  practice 
between  the  parties,  it  appears  to  me  that  the  sej)aralion  of  the  oil  of 
a  particular  jiart-owncr  from  the  residue,  and  j)Utting  his  initials  upon 
the  casks,  was  not  an  absolute  appropriation  of  liie  cask  and  its  contents 
to  that  part-owner,  but  only  a  (jualilied  approjiriation  enabling  him  to 
take  the  goods,  uidess  the  ship's  husband  afterwards  prevented  him  by 
giving  notice  to  the  warehouseman.  The  particular  circumstance  of 
separating  the  oil  in  question  from  the  residue,  and  putting  on  the  cask 
which  contained  it  the  initials  of  Foxton,  connected  with  the  previous 
usage  between  the  parties,  appears  to  me  to  amount  in  this  case  not  to 
an  absolute  but  to  a  qualified  appropriation  only.  The  property  in 
the  oil  was  thereby  vested,  but  subject  to  be  devested  (as  in  point  of  fact 
it  was)  by  the  intervention  of  Ijocking.  It  seems  to  me  that  the  jus- 
tice and  law  of  the  case  are  with  the  defendant,  and  that  there  ought  to 
be  a  judgment  of  nonsuit. 

Baylev  J.  Where  there  is  a  joint  adventure  which  produces  certain 
goods,  the  proper  course  is,  first  to  deduct  all  the  expenses  which  have 
been  incuried  in  order  to  obtain  those  goods,  and  then  to  divide  the  re- 
sidue among  the  shareholders,  in  proportion  to  the  shares  to  which  each 
is  entitled  respectively.  In  this  case  the  joint  adventurers  obtained  a 
quantity  of  oil  in  bulk.  No  partner,  or  representative  of  a  partner,  had 
a  right  to  his  aliquot  part  of  that  oil  until  he  had  paid  his  share  of  the  ex- 
pense of  procuring  it.  That  will  be  the  case,  whether  the  shareholder 
has  become  bankrupt  or  continues  solvent.  If  he  continues  solvent,  he 
may  pay  his  share  of  the  outfit,  and  of  the  expense.  If  he  does  not  pay 
it  in  money,  the  other  part-owners  have  a  right  to  see  that  an  aliquot  part 
of  what  has  been  gained  in  the  adventure  be  retained,  so  as  to  pay  that 
share  of  the  outfit  which  he  ought  to  pay.  In  this  case  Foxton  became 
bankrupt,  and  having  become  bankrupt,  if  he  could  have  paid  in  money 
his  share  of  the  outfit,  there  would  have  been  twenty-nine  tons  of  oil 
coming  to  him.  He  could  not  pay,  and,  therefore,  as  it  seems  to  me, 
the  justice  and  the  law  of  the  case  is,  that  his  share  of  the  expense  should 
be  paid  out  of  the  twent3^-nine  tons,  and  that,  until  he  has  paid  his  share 
of  the  expense,  he  cannot  claim  that  quantity.  It  has  been  said,  that 
there  has  in  this  case  been  a  delivery,  and  that,  in  consequence  of  that 
delivery,  the  rights  of  Foxton,  and  of  his  assignees,  are  different  from 
what  they  otherwise  would  have  been.  But  it  seems  to  me  that  there 
has  nolbeen  a  perfect  delivery.  It  would  have  been  perfect  if  the  other 
part-owners  had  been  dispossessed  of  the  oil.  That  has  not  been  done. 
The  |)ropcrty  still  remained  in  the  warehouse,  and  was  the  joint  proper- 
ty of  all.  A  part  only  has  been  removed.  The  removal  of  that  part  docs 
not  vary  the  right  as  to  the  residue.  It  is  clear  that  the  assignees  can- 
not recover  the  twenty-nine  tons  before  they  pay  Foxton's  share  of  the 
expense.  The  other  part-owners  might  say,  there  are  twenty-nine  tons 
allotted  to  you;  you  may  take  possession  of  all  to  which  you  will  be  en- 
titled, but  you  must  first  pay  your  share  of  the  expense:  nine  tons  will 
be  su/Ticient  for  that  purpose;  you  may,  tlierei"i)ie,  take  away  twenty  tons. 
The  right  of  the  other  part-owners  is  not  varied  \iy  llu  ir  having  allowed 
'he  bankrupt  to  take  away  twenty  tons.  That  being  so,  the  plaintifis  arc 
not  entitled  to  recover.      It  has  been  urged,  that  there  has,  in  this  case, 


8  BaRNEWALL  &  CUESSWELL,  612.  319 

been  a  change  of  possession,  by  reason  of  Locking's  having  debited  tlie 
bankrupt  in  account  with  a  portion  of  the  rent.  But  that  portion  of  the 
rent  must  have  b^n  paid  by  the  bankrupt  before  he  took  away  the  oil  in 
specie;  or  it  might  have  been  deducted  out  of  his  share  of  tlie  produce, 
if  he  compelled  the  other  shareliolders  to  sell,  in  order  to  pay  his  share 
of  the  expense.  The  usage  being  for  the  part-owners  to  detain  the  oil, 
until  each  part-owner's  share  of  the  expense  has  been  paid,  it  seems  to 
me,  that  the  fact  of  debiting  the  party  with  ware-house  rent  can  have  no 
efifect.  I  think,  therefore,  that  the  plaintiffs  have  not  made  out  their  right 
to  the  residue  of  the  oil;  and,  consequently,  that  there  ought  to  be  a  non- 
suit. 

Judgment  for  the  defendants  (a). 

(a)  Littledale  was  in  tlic  bail  court. 


SIGOURNEY  v.  LLOYD  and  Others.— p.  G22. 

A  bill  of  exchange  drawn  in  America  on  a  house  in  London,  payable  to  order,  was 
indorsed  by  the  payee  generally  to  A.,  and  by  him  in  tlicse  words:  "  Pay  to  B. 
or  his  order  for  my  use."  B.  applied  to  his  bankers  to  discount  the  bill,  and 
they,  without  making  any  enquiry,  did  so,  and  applied  the  proceeds  to  the  use 
of  B.  :  Held,  that  the  indorsement  was  restrictive;  that  the  property  in  the  bill 
remained  in  A.,  and  that  he  was  entitled  to  recover  the  amount  of  the  bill  from 
the  bankers. 

Assumpsit  for  money  had  and  received.  Pica,  general  issue.  The 
plaintiflf  was  a  merchant  residing  at  Boston,  in  the  United  Stales  of  Ame- 
rica. The  defendants  were  bankers  in  London,  carrying  on  business 
under  the  firm  of  Messrs.  Jones,  Lloyd,  and  Co.  Before  the  trial  the 
parties  agreed  that  the  plaintifi" should  take  a  verdict  by  consent  for  3164/. 
\\s.  8(1. ,  subject  to  the  following  case,  with  liberty  for  cither  party  to 
turn  it  into  a  special  verdict.  This  was  accordingly  done  with  the 
approbation  of  Lord  Tenlerdcn  C.  J.,  before  whom  tlie  cause  came  on 
for  frinl: — 

In  the  month  of  July,  Cnptain  Attwood,  who  commanded  a  vessel  be- 
longing to  the  plaintiff,  took  in  pnymenlof  a  cargo  of  (lour,  the  property 
of  the  plaintiff,  which  lie  sold  at  llio  Janeiro,  a  bill  of  exchange  for.'3lGl/. 
ll.y.  8^.,  drawn  in  a  set  of  three  by  March,  Scaly,  Walker,  and  Co.,  of 
that  place,  on  March,  Scaly,  and  Co.  of  London.  Tliis  bill  was  payable 
to  the  order  of  Messrs.  Hendricks,  VVicrss,  and  Co.,  who  indorsed  it  to 
Captain  Attwood.  Tiir-  following  arc  coj)ics  of  tin.'  first  and  third  parts 
of  the  bill:  — 

'<  2071/.  due  2Sth  November. 

"  Ivio  de  Janeiro,  12tli  July  1.S2.'',. 

"For  31G1/.  11.9.  Sr/.     12.'5S. 

"At  sixty  days  sight  pay  this  first  of  exchange,  sccfjiid  and  tliird  not 

paid,  to  the  order  of  Messrs.  Hendricks,  Wicrss,  and  Co.  three  thousand 

one  hundred   and  sixty-four  pounds,  eleven  shillings,  and  eight-pence, 

value  of  the  saniC,  which  place  to  account,  as  per  advice  from 

"  March,  Scaly,  Walker,  &  Co." 
This  bill  was  indorsed  by  the  ])nyees  to  A.  Attwood. 


320  SiLiouRNEY  V.  Lloyd.  M.  T.  1828. 

"  Rio  lie  Janeiro,  the  12lh  July  1823. 
"For  316  1/.  lis.  Sd. 

**  At  sixly  ilays  sit!;lit  pay  this  third  of  exchange,  first  and  second  not 
paid,  to  liic  order  of  JNIessrs.  Hendricks,  Weirss,  and  Co  ,  three  thousand 
one  hunih-ed  and  sixty-four  pounds,  eleven  sliillings,  and  eight-pence, 
value  of  tlie  same,  which  place  to  account,  as  per  advice  from 

'<  March,  Sealy,  Walker  &  Co." 

This  was  indorsed  hy  tlie  payees  to  A.  Attwood,  hy  Attwood  to  the 
jdainlill",  hy  the  latter  in  the  following  words  :  *'Pay  (o  Samuel  Wil- 
liams, Ks<i.,  of  Loudon,  or  his  ortler,  for  my  use;"  and  by  S.  Williams 
to  Jones  antl  Co. 

Attwood  sent  the  firf^t  of  the  set  to  the  corres]iondcnt  of  the  plaintiff, 
Mr.  Samuel  Williams  of  London,  who  was  an  American  agent  and  fac- 
tor for  merchants  and  planters,  carrying  on  such  business  to  a  very  great 
extent,   inclosed  in  the  following  letter:     "Sir,  I  herewith  have  the 
honour  to  enclose  you  the  first  of  exchange  for  3164/.  11*.  S^.  sterling, 
at  sixty  days  sight,  on  Messrs.  March,  Sealy,  and  Co.,  in  London,  in  fa- 
vour of  myself,  it  being  the  proceeds  of  a  cargo  of  flour  in  brig  Swiftsure, 
belonging  to  Henry  Sigourne)'^,  Esq.,  Boston,  America,  which  you  will 
please  to  present  for  acceptance,  and  keep  at  the  disposal  of  the  second 
or  third."     Lut  he  did  not  indorse  the  bill.     Williams  received  the  let- 
ter and  bill  on  the  26th  September  1S25,  and  procured  the  acceptance  of 
the  bill  in  due  course.   The  third  of  the  set  was  remitted  to  the  plaintiff; 
and  he  having  indorsed  it  as  aforesaid,  "Pay  to  Mr.  Samuel  Williams, 
or  order,  for  my  use,"  remitted  it  to  Williams  in  the  following  letter  of 
the  17lh  September  1S25:     "  Captain  Amaziah   Attwood,  of  my  brig 
Swiftsure,  arrived  here  yesterday,  Rio  Janeiro,  whence  he  sailed  about 
the    Jidy.    He  informs  me  that  he  left  a  letter  directed  to  you,  to  be  for- 
warded to  you  by  the  next  English  mail,  containing  the  first  of  March, 
Sealy,   Walker,  and  Co's.  draft  on  March,  Sealy,  and  Co.,  London, 
dated  12th  of  July,  at  sixty  days  sight,  for  3164/.  11*.  8^.    sterling,  in 
favor  of  Messrs.  Hendricks,  Weirss,  and  Co.,  and  by  them  indorsed  to 
said  A.  Attwood.      He  thinks  he  did  not  indorse  the  draft;  and  if  receiv- 
ed, it  can  only  be  accepted.     Enclosed  you  have  third   bill  of  the  set 
indorsed  to  me  by  Captain  Attwood,  and  to  yourself  by  me.    I  presume 
that  if  the  other  sliould  have  been  previously  received  and  accepted,  that 
a  receipt  on  the  one  now  transmitted  would   be  accepted  at  maturity. 
Have  the  goodness,  when  you  advise  the  receipt,  which  I  trust  will  be 
as  soon  as  possible,  of  the  present,  to  inform  me  the  standing  of  the  ac- 
ceptors.    Henry  Sigouiney."     The  letter  and  bill  were  received  by 
Williams  on  the  21st  October  1826.     The  defendants  had  no  notice  of 
the  before-mentioned  letters  of  Captain  Attwood  and  the  plaintifi',    Wil- 
liams stopped  payment  on  the  2  Itli  of  October  aforesaid,  and  a  docket 
was  struck  against  him  on  the  25th  of  the  same  month,  upon  which  a 
commission,  dated  the  27th  of  the  same  month,  was  issued,  and  he  was 
declared  a  bankrupt  immediately  afterwards.     At  the  lime   Williams 
received  the  bill  in  question,  as  well  as  at  the  time  of  his  bankruptcy, 
the  balance  of  account  was  in  favour  of  the  plaintiff  to  the  amount  of  up- 
wards of  3000/. ,  exclusive  of  the  before-stated  bill.      On  the  morning  of 
the  22d  of  October,  when  the  discount  hereinafter  mentioned  was  made, 
the  balance  in  favour  of  Williams  with   the  defendants  was  3784/.  10^. 
lOd.     About  11  o'clock  on  that  day  Williams  indorsed  the  bill  in  ques- 
tion, with  others,  amounting  in  the  whole  to  7081/.  lis.  9ci.,  to  the  do- 


8  Barnewall  &  Cresswell,  622.  321 

fendants,  who  were  his  hankers,  and  in  the  hahit  of  discounting  for  him 
very  largely,  and  the  said  hills  were  hona  fide  discounted  for  him,  and 
cred  it  given  to  him  for  the  amount,  less  the  discount;  and  subsequently, 
VIZ.  at  the  clearing  house  about  5  o'clock  in  the  evening  of  that  day,  the 
defendant  paid  Williams's  acceptances  due  that  day  to  the  number  of' 
thirty -two,  and  three  drafts,  amounting  to  10,683/.  IS^.  Id.  The  bill  in 
question  was  honored  at  maturity,  and  the  amount  received  by  the  de- 
fendants on  the  2Sth  November  1825. 

F.  Pollock  for  the  plaintiff.  The  bill  belonged  to  the  plaintiff,  and 
he  is  entitled  to  recover  its  amount  from  the  defendants.  The  indorse- 
ment was  special,  so  as  to  prevent  the  indorsee  from  transferring  any 
interest  in  the  bill  beyond  the  particular  purpose  or  the  particular  indi- 
vidual mentioned  in  the  indorsement.  He  cited  Snee  v.  Prescott,  1 
Atk.  247;  Edie  v.  The  East  India  Company,  2  Burr.  1227.  [He  was 
then  stopped  by  the  Court,] 

Parke,  contra,  referred  to  il/ore  v.  Manning,  Com.  311;  Jlchesonv. 
Fountain,  1  Str.  557;  Edie  v.  East  India  Coinpany,  2  Burr.  121 G; 
Evans  v.  Cramlington,  Carth.  5,  2  Vent.  307,  Skinn.  264,  1  Show. 
4;  2  Ventris,  307;   Trcuttely.  Barandon,  8  Taunt.  100. 

Lord  Tenterden  C.  J.  I  am  of  opinion  that  in  this  case  the  plain- 
tiff is  entitled  to  recover.  It  appears  from  Uic  report  of  the  case  of 
Snee  v.  Prescolt,  1  Atk.  247,  that  in  1743  an  indorsement  in  this  form 
was  not  unusual;  and  it  appears  to  have  been  the  opinion  of  Lord  Hard- 
wicke  in  that  case,  and  also  to  have  been  the  opinion  of  Mr.  Justice 
fVilmot,  in  the  case  of  Edie  v.  The  East  India  Company,  2  Burr. 
1227,  that  such  an  indorscn^.ent  will  have  the  effect  of  preventing  a  sub- 
sequent transfer  of  the  bill  for  tlie  benefit  of  any  other  than  the  person 
for  whose  use  it  is  expressed  to  have  been  made  by  the  indorsement. 
The  case  of  Ancher  and  Others  v.  The  Bank  of  England,  Doug. 
G37,  is  an  authority  to  the  same  effect.  The  indorsement  was  not  pre- 
cisely iii  the  same  form  as  in  the  present  case;  but  the  effect  of  it  is  the 
same.  The  indorsement  there  was,  "  The  witliin  must  be  credited  to 
Captain  Moreton  L.  iJahl,  value  in  account."  An  indorsement  pur- 
porting to  have  been  made  by  Dahl  was  afterwards  forged,  and  the 
Bank  of  Kngland  discounted  tin;  I)ill.  'I'he  acceptors  did  not  jiay  it; 
before  it  became  due  they  had  failed,  and  one  Fulgbcrg  paid  it  for  the 
honour  of  Ancher  and  Co.  the  plaintiffs;  and  upon  llio  ground  that  the 
indorsement  had  restrained  the  negotiability  of  the  hill,  they  brought  an 
action  for  money  had  and  received  against  the  liank.  Lord  Mansfield 
directed  a  nonsuit;  biitupon  a  rule  to  shew  cause  why  there  should  not 
he  a  new  trial,  and  cause  shewn.  Lord  Mansfield,  IWillcs,  and  .^shnrst 
Js.,  thoMglit  the  indorsement  restrictivo,  nnd  that  the  plaintiffs  wore  en- 
titled to  recover;  but  liiillcr  J.  thought  otherwise;  upon  which  Lord 
Mansfield  said,  the  whole  tiu'iifid  on  tlie  (luestioii,  wlu^tlier  the  bill  con- 
tinued negotiable?  and  if  tluiy  altered  their  opinion,  they  would  mention 
(he  case  again;  but  it  never  was  mentioned  afterwards;  and  upon  anew 
trial,  Lortl  Mansfield  iWrcvXcA  the  jury  to  find  for  the  j)laintiff,  which 
they  (lid.  It  has  been  said  that  Ihe  indorsement  "  Pay  to  Williams  for 
my  use,"  is  a  mere  direction  to  Williams  to  apply  the  money  produced 
by  the  bill  to  Sigourney's  use;  but  the  words  taken  in  that  sense  would 
be  useless;  for  whether  the  words  be  on  the  face  of  the  indorsement  or 
not,  as  soon  as  Williams  received  the  jirorecds  of  the  bill,  he  must  ne- 
cpssariJy  apj^ly  tliPin  to  Signiu'nfy''^  use,  nnd  place  them  to  his  credit  in    _ 

vol..   xv.  11 


322  SinouuNKY  7'.  Lloyd.    M.  T.  1828. 

the  aocoiinl  Ijetwecii  them.  So  lliat  those  wonls  will  liave  no  effect 
whatever,  unless  they  have  that,  of  rcslraining  the  ncgoliahility  of  the 
bill,  or  at  least  of  making;  the  first  indorsee  (if  he  takes  the  bill  with 
those  words  on  it,  as  Williams  did  in  this  case)  a  trnstce  for  the  original 
indorser.  The  case  o(  Evcms  v.  Cramlington,  when  duly  considered, 
does  not  seem  to  me  to  be  sufllcient  to  countervail  the  authorities  to 
which  I  have  already  adverted.  The  bill  in  that  case  was  drawn  by 
Cramlinglon  upon  one  Ryder,  payable  to  T.  Price  or  his  order,  for  500/. 
for  the  use  of  F.  Calvert.  Ryder  accej)ted,  but  did  not  pay  the  bill.  Price 
indorsed  it  to  Evans  for  value.  The  latter  brought  an  action  against  Cram- 
linglon the  drawer;  he  pleaded  that  Calvert  (who  was  named  in  the 
bill  as  the  cestui  que  use)  was  an  oflicer  of  the  excise,  and  indebted  to 
the  king  in  such  a  sum,  and  that  upon  an  exchequer  process  at  the  suit 
of  the  king  this  500/.  was  extended  in  his  hands.  To  this  plea  there 
was  a  demurrer.  It  appears,  therefore,  that  Cramlington  in  answer  to 
the  claim  of  Evans,  the  indorsee,  set  up  what  is  sometimes  denominated 
the  jus  tertii;  and  the  only  question  which  it  was  necessary  for  the 
Court  to  determine  was,  whether  the  bill  being  in  trust  only  for  the  use 
of  Calvert,  was  liable  to  be  seized  under  the  extent  against  him?  The 
Court  was  of  opinion  that  it  was  not.  The  proposition  of  Cramlington, 
that  the  jus  tertii  intervened,  failed  entirely,  and  it  became  unnecessary 
to  decide  any  other  point.  That  case,  therefore,  as  it  seems  to  me,  is 
not  of  sufficient  weight  to  countervail  the  opinions  delivered  in  Snee  v. 
Prescot,  1  Atk,  247;  Edic  v.  The  East  India  Company,  2  Burr, 
1216;  and  Anchcr  v.  The  Bank  of  England,  Doug.  637.  The  use  of 
indorsements  of  this  kind  is  not  small,  nor  arc  they,  as  it  seems  to  me, 
inconsistent  with  the  interests  and  convenience  of  commerce.  Such  an 
indorsement  will  not  prevent  the  indorsee  from  receiving  the  money 
from  the  acceptor  when  the  bill  becomes  due.  If  he  pay  it  to  his  prin- 
cipal all  will  be  well,  but  the  indorsee  must  look  to  him  for  the  applica- 
tion of  it.  It  will  have  the  edcct  of  preventing  a  failing  man  from  dis- 
posing of  the  bill  before  it  becomes  due,  and  from  pledging  it  to  relieve 
himself  from  his  own  debts  at  the  expense  of  his  correspondent.  I  can- 
not see  that  the  interests  f)f  commerce  will  bo  prejudiced  by  our  holding 
that  such  an  indorsement  is  restrictive.  On  tlie  contrary',  I  think  that 
the  interests  of  commerce  will  thereby  be  advanced.  It  is  said,  that  it 
cannot  be  expected  th;it  bankers  or  others  when  requested  to  discount 
such  bills  as  this,  should  look  into  the  accounts  between  the  principal 
and  his  agent.  I  agree  it  cannot  be  expected  they  should;  but  still  if 
they  take  the  bill  so  indorsed,  they  take  it  at  their  peril,  and  must  be 
bound  by  the  slate  of  the  accounts  f)otwcen  those  parties. 

Batlkv  .1.  The  indorsement  in  this  case  is  in  the  words  ''  Pay  to 
Williams  or  his  order  for  my  use/'  The  question  is,  whether  the 
words  "  for  my  use''  have  or  Inve  not  nnv  efl'oct  witii  reference  to  the 
bill  itself?  The  person  who  remits  a  bill,  may  give  private  directions 
to  his  correspondent  in  the  letter  in  whicli  the  bill  is  inclosed,  and  if  he 
means  the  directions  to  be  private,  they  will  be  confined  to  the  letter. 
But  when  he  introduces  the  words  *'  to  ni}-  use"  on  the  bill  itself,  he 
notifies  to  the  world  that  he,  the  party  indorsing,  has  not  given  to  the 
indorsee  a  general  unlimited  authority  to  apply  it  to  his  own  pui-poses, 
but  only  to  apply  it  to  the  use  of  him  the  indorser.  It  has  been  sug- 
gested, that  the  most  convenient  construction  to  put  on  the  words  will 
be,  to  hold  that  the  indorser  meant  thereby  to  direct  Williams  to  apply 


8  BaRNEWALL  &  CUESSWELL,  622.  323 

the  money  to  liis,  the  indorscr's  use,  but  not  to  put  the  indorsee  on  liis 
guard.  My  opinion  is,  tiuU  it  is  the  most  convenient  construction 
which  will  most  eflectually  protect  the  party  who  appears  by  the  form 
of  the  indorsement  used  by  him  to  have  thought  that  he  required  pro- 
tection. It  is  said,  why  introduce  the  words  "  or  order?"  The  pur- 
poses of  the  indorser  may,  pcrliaps,  have  required  that  the  bill  should 
be  indorsed.  I3ut  before  any  person  could  honestly  take  that  bill  and 
advance  money  on  it,  he  ought,  seeing  the  words  "  for  my  use"  on  the 
bill,  to  have  satisfied  himself,  from  the  correspondence  and  the  state  of 
the  accounts  between  Sigourney  and  Williams,  whether  the  latter  was 
indorsing  it  for  the  benefit  of  Sigourney  or  for  himself.  And  if  such  a 
person  advances  money  upon  a  bill  so  indorsed  without  making  such 
inquiry,  he  advances  it  at  his  peril.  Now,  in  this  instance,  the  defen- 
dants advanced  money  on  this  bill  without  making  any  inquiry,  and  ap- 
plied the  whole  of  that  money  to  the  use  of  Williams.  The  bill  was 
discounted  on  the  22d  of  October,  the  day  after  it  was  received.  At 
that  time  Williams  had  more  than  3000/.  in  the  hands  of  the  defen- 
dants. They  discounted  this  and  other  bills  to  the  amount  of  7000/,, 
and  in  the  course  of  the  day  all  the  money  produced  by  this  and  other 
bills,  to  the  amount  of  10,000/.,  was  applied  to  the  use  of  Williams,  so 
that  in  the  afternoon  of  that  day  they  had  in  their  hands  182/.  only. 

As  to  the  case  of  Evans  v.  Crcwilitigion,  it  is  sufficient  to  say  that 
that  case  came  before  the  Court  on  demurrer,  and  that  there  was  no 
question  whether  there  had  been  any  misapplication  of  the  money  which 
had  been  received  by  means  of  the  bill.  In  this  case  there  has  been  a 
misapplication  of  the  money  by  the  defendants.  That  is  a  suflicient 
distinction  between  this  case  and  that  of  Evans  v.  Cramlinglon.  For 
these  reasons  I  am  of  opinion,  that  in  this  case  the  plaintiff,  who  made 
the  special  indorsement,  thereby  eflectually  protected  himself,  and  is 
entitled  to  the  judgment  of  the  Court. 

Postea  to  the  plaintiff.(«) 

((/)  Littlrdali'  J.  was  in  the  Iniil  court. 


JAY,  Cent.,  one,  &c.  v.  COAKS.— ji.  (i35. 

Where  a  jud>;c'.s  order  for  taxiiiK;  an  attorney's  l)ill  is  not  obtained  nnlil  after  iic 
lias  commenced  an  action  for  the  amount,  the  defenihint  is  not  entitled  to  the 
costs  of  taxation,  althoutj;h  more  tlian  one-sixth  is  taken  "fTljy  the  Master. 


IIANDIJOV  V.  I.IOVV.— p.  •i;i7. 

Where  in  an  action  rommcneed  in  liie  I'alace  Court,  and  afterwai-ds  removed  in- 
to K.  H.,  the  plaintiir  recovers  less  tiian  the  sum  for  wliic  li  lie  held  the  defend- 
ant to  bail,  the  Court  of  K.  B.  has  no  power  to  allow  ih'  d'tcmlant  his  costs 
under  the  statute  43  (i.  3.  c.   16.  s.  8. 


324  MiciiLAM  V.  Bate.  M.  T.  1828. 


TENON  V.  MARS.— p.  63b.  {a) 

An  affidavit  of  debt,  stating  tliat  defendant  was  indebted  to  the  plaintiff  as  liqui- 
dator (duly  appointed  by  the  law  of  France)  of  an  estate  is  irregular,  unless  it 
shew  that  by  the  law  of  France  a  liquidator  is  entitled  to  sue. 

In  this  case  tlic  plaintifl'  and  defendant  were  subjects  of  the  king  of 
France.  Tlic  aflidavit  of  debt  was  by  T.  A.  Tenon,  liquidator  (legally 
appointed  by  the  law  of  France)  of  tbc  estate  of  J.  Vernarell  and  T.  A. 
Tenon,  lately  carrying  on  business  as  booksellers  at  Paris  under  the  firm 
Vernarell  and  Tenon,  and  stated  tliat  the  defendant  was  indebted  to  T. 
A.  Tenon  as  liquidator  of  that  estate,  by  virtue  of  promissory  notes 
drawn  in  France  by  the  defendant.  A  rule  nisi  had  been  obtained  by 
Dennian  for  delivering  up  the  bail-bond  to  be  cancelled,  on  the  ground 
that  it  did  not  appear  by  the  aflidavit  of  debt,  that  the  plaintiff  as  liqui- 
dator, by  the  law  of  France,  was  entitled  to  sue. 

The  Courts  after  hearing  Mimning  against  the  rule,  were  of  opinion 
that  it  ought  to  have  been  sliewn  that,  by  the  law  of  France,  a  liquidator 
was  entitled  to  sue,  and  made  the  rule  absolute. 

Rule  absolute. 

(a)  The  trial  at  bar  of  the  cause  of  Rowe  v.  Brenton  occupied  the  court  from 
Wednesday  the  19th  of  November  until  a  late  hour  in  the  evening  of  Wednesday 
the  26th  of  November. 


The  KING  v.  The  .Justices  of  KENT.— p.  639. 

Semble,  That  it  is  unnecessary  to  enter  and  respite  an  appeal  at  the  next  sessions, 
where  the  order  of  removal  is  served  so  late  as  to  render  it  impossible  to  try 
the  appeal  ai  those  sessions. 


MICIILAM  V.  BATE.— p.  642. 

The  defendant  is  not  entitled  to  costs  of  a  judgment  of  non  pros,  obtained  by  rea- 
son of  the  plaintiff  having  omitted  to  enter  the  issue  on  record,  after  issue  join- 
ed on  a  demurrer  to  a  plea  in  abatement. 

Issue  was  joined  in  this  case  in  Michaelmas  term  upon  demurrer  to  a 
plea  in  abatement.  The  plaintiff  omitted  to  enter  the  issue  upon  record. 
Judgment  of  non  pros,  was  signed  by  the  defcncUmt  for  not  entering  the 
issue.  The  defendant's  attornies  applied  for  costs  of  judgment  of  non 
pros.,  which  the  j)laintiff  refused  to  pay.  The  defendant  then  issued  a 
ca.  sa.,  and  the  plaintiff,  in  order  to  prevent  an  arrest,  paid  to  the  sheriff 
of  Gloucester  10/.  A  rule  nisi  had  been  obtained  to  set  aside  the  ca.  sa. 
and  all  subsequent  proceedings  for  irregularity,  and  to  have  restored  the 
sum  of  10/.  p.'iid  to  the  sheriff. 

Follett  shewed  cause.  According  to  the  general  rule,  a  defendant 
who  obtains  judgment  of  non  pros,  i.s  entitled  to  costs,  Davis  v.  James,  1 
T.  R.  .371.  An  executor  is  even  liable  to  costs  on  a  judgment  of  non 
pros.  Hawes  v.  Saunders,  3  Burr.  15S4. 

Cuinpbell  contra,  cited  Thomas  v.  Lloyd,  1  Salk.  194.  1  Ld.  Raym. 
536i  Thrulcw  The  Bhhoj^  nj  London,  1  II,  Bl,  530. 


8  Barnevvall  &  Cresswell,  64^.  325 

Lord  Tenterden  C.  J.  It"  the  plaintiff  had  entered  the  issue,  and  the 
judgment  of  the  Court  had  been  against  him,  he  would  not  have  been 
liable  to  pay  costs.  Here  he  forbore  to  enter  the  issue,  and  thereby 
rendered  it  unnecessary  for  the  defendant  to  incur  the  expense  of  argu- 
ing the  demurrer.  As  the  plaintiff  would  not  have  been  liable  to  pay 
the  costs,  if  the  Court,  after  argument,  had  given  judgment  against  him, 
we  think  he  ought  not  to  be  subject  to  costs  by  reason  of  his  having 
omitted  to  enter  the  issue,  and  thereby  rendered  expense  unnecessary. 
Tlie  rule  must,  therefore,  be*nade  absolute. 

Rule  absolute. 


In  the  Matter  of  JAMES  NUNN.— p.  644. 

By  Stat.  6  G.  4.  c.  108.  s.  3.  if  any  vessel  therein  described  shall  be  found  on  the 
high  seas,  within  100  leagues  of  any  part  of  the  coasts  of  the  United  Kingdom, 
or  shall  be  discovered  to  have  been  within  the  said  distance,  having  on  board 
the  goods  therein  specified,  the  goods  and  the  vessel  shall  be  forfeited.  By  s, 
49.  every  person  who  sliall  be  found  or  discovered  to  have  been  on  board  any 
vessel  liable  to  forfeiture  under  that  act  for  being  found  or  discovered  to 
have  been  within  any  of  the  distances  or  places  mentioned  in  the  act  from 
the  United  Kingdom,  sliall  forfeit  100/.,  and  may  be  detained  and  taken 
before  two  justices,  to  be  dealt  with  as  thereinafter  mentioned.  By  s.  74. 
any  offence  against  that  act  shall,  for  the  purpose  of  prosecution,  be  taken  to 
have  been  committed,  and  the  penalties  incurred,  at  the  place  on  land  in  the 
United  Kingdom  into  which  the  person  committing  such  offence,  or  incurring 
such  penalty,  shall  be  taken,  brought,  or  carried;  and  in  case  such  place  on  land 
is  situate  within  any  city,  8cc.,  the  justices  of  the  peace  for  the  city,  &c.,  as  well 
as  those  for  the  county  within  which  such  city  is  situate,  shall  have  jurisdiction 
to  try  all  offences  committed  upon  the  high  seas  against  the  act.  A  vessel  lia- 
ble to  foi-feiture  under  tliis  act  was  seized  in  a  part  of  the  river  Orwell  where 
the  justices  of  Ipswich  had  jurisdiction,  and  a  person  found  on  board  the  vessel 
was  taken  to  Harwich,  and  prosecuted  before  two  justices  of  that  place,  who 
convicted  him  in  a  penalty  of  100/.  for  having  been  found  on  the  high  seas  on 
board  a  vessel  liable  to  forfeiture:  Held,  that  the  justices  of  Harwich,  being 
justices  at  the  first  place  on  land  to  which  the  party  was  carried,  had  jurisdic- 
tion to  try  the  oflcncc. 

When  tlic  vessel  was  first  boarded  she  was  just  entering  the  harbour  of  Harwich: 
Held,  that,  in  the  absence  of  all  other  evidence,  a  person  then  found  on  board 
might  properly  be  found  to  have  been  on  l)oard  on  the  high  seas. 


PITT  v.  NEW.— p.  GS'l. 

An  affidavit  of  debt  for  money  paid  for  the  use  and  benefit  of  the  defendant  is 
irregular,  if  it  omit  to  state  tliat  it  was  paid  at  his  request. 

A  RULE  nisi  had  been  obtained  for  discharging  the  defendant  out  of 
the  custody  of  the  sheriff  of  (ilouccstcr  upon  fdiiig  common  bail,  upon 
the  ground  that  the  affidavit  of  debt  waa  defective.  It  stated  lliat  John 
New  was  indebted  to  deponent  I'itt  in  the  sum  of  fi  100/.  for  money  paid, 
laid  out,  and  cx[)cn(lcd  by  deponent  to  and  for  the  use  and  benefit  ol 
John  New;  Ijut  it  did  not  aMege  it  to  have  been  paid  at  the  request  of 
New. 

Cujnpbdl  now  shewed  cause,  icfcriing  to  Dmnford  v.  Messiler, 


:J26  IMtt  I'.  Ni:w.  M.  T.  1828. 

5  M.  &:  S.  4  l(i;  B/iss  v.  ^^tkins,  3  Taunt.  75(i;  E^re  v.  Ilulton,  5  Taunt. 
70  1;  and  Bcrrij  v.  Fernandez,  1  Bingh.  338. 

Lord  Tkntkuhen  C.  J.  I  liave  a  very  great  respect  for  tl»e  opinion 
oftlie  Court  ol"  Common  Pleas;  but  we  are  bound  to  exercise  our  own 
judgment  on  every  case  submitted  to  our  consideration.  The  fact  of 
one  man's  having  paid  money  to  the  use  of  another,  does  not  (unless  it 
has  been  paid  at  the  request  of  that  other)  give  him  any  cause  of  action 
against  that  other,  becnuse  a  man  cannot,  of  liis  own  will,  pay  another 
man's  debt,  and  thereby  convert  himself  ipto  a  creditor.  It  is  perfectly 
consistent,  therefore  with  the  facts  stated  in  the  affidavit,  that  the  plaintiff 
may  not  be  entitled  to  recover.  The  aflidavit,  consequently,  is  insufficient, 
and  tills  rule  must  be  made  absolute. 

Rule  absolute. 


The  KING  v.  The  Inhabitants  of  LEW.  (a). —p.  655. 

An  assistant  overseer,  elected  and  appointed  under  the  statute  59  G.  3.  c.  1 2.,  at  an 
annual  salary  of  10/.  will  gain  a  settlement  by  serving  such  office  for  a  year. 

Ruttlic  appointment  in  writing,  under  the  hands  and  seals  of  the  justices,  to  such 
an  othce,  with  an  annual  salary  annexed  to  it,  requires  a  stamp  of  2/. 

(a)  The  Judges  of  this  Court  sat,  as  on  former  occasions,  from  Monday  the  8th 
day  of  December  to  Saturday  the  20th  day  of  December  inclusive;  and  from  Tues- 
day the  1 3th  day  of  January  to  Thursday  the  22d  day  of  January  inclusive.  During 
that  period  this  and  the  following  cases  were  argued  and  determined. 


The  KING  V.  The  Inhabitants  of  CHRIST  CHURCH,  LONDON.— 

p.  C60. 

A  party  does  not  gain  any  settlement  by  reason  of  his  having  been  assessed  to  and 
paid  the  watch-rate  in  the  city  of  London. 


The  KING  v.  The  Inhabitants  of  the  Parish  of  St.  ANDREW  the 
GREAT,  in  the  Town  and  County  of  CAMBRIDGE.— p.  664. 

Where  it  was  made  a  question  of  fact  at  the  sessions,  whctlicr  there  was  a  hiring 
and  service  for  a  year  in  the  appellant  paiush,  and  tlie  sessions  confirmed  the 
order  of  removal,  subject  to  the  opinion  of  this  Court  as  to  a  settlement  being 
gained  there  by  hiring  and  service :  Held  that  this  amounted  to  a  finding  by  the 
justices  at  sessions  that  there  was  a  hiring  and  service  for  a  year  in  that  parish, 
and  that  such  finding  ought  not  to  tjc  disturbed  by  this  Court,  if  there  were  any 
premises  to  warrant  it. 


The  KING  v.  The  Inhabitants  ofROSLISTON  in  the  County  of  DER- 
BY.—p.  668. 

Where  the  court  of  (juarter  sessions  have  found,  upon  a  case  stated,  tlkal  there 
L   was  no  general  hiring,  this  Court  will  not  disturb  their  decision,  if  there  appear 
to  have  been  any  premises  to  warrant  it, 


8  Barnewall  &  Cress  WELL,  671.  327 

The  KING  V.  The  Inhabitants  of  EDWINSTOWE.— p.  671. 

Relief  given  to  a  pauper  while  he  is  residing  out  of  the  relieving  parish,  is  prima 
facie  evidence  of  a  settlement  in  that  parish;  and  evidence  of  one  instance  in 
which  relief  was  so  given  was  held  to  be  sufficient  to  warrant  a  finding  by  the 
sessions  that  the  pauper  was  settled  in  the  relieving  parish,  although  upon  a 
second  application  relief  had  been  refused. 


The  KING  V.  The  Inhabitants  of  St.  MARTIN,  in  LEICESTER.— 

p.  G74. 

Where  the  court  of  quarter  sessions  have,  from  facts  proved  before  them,  drawn 
the  conclusion,  that  there  was  an  implied  hiring  for  a  year,  this  Court  will  not, 
upon  a  case  sent  to  them  by  the  sessions  stating  those  facts,  disturb  that  deci- 
sion, if  there  appear  any  premises  whatever  to  warrant  it. 


The  KING  V.  St.  ANDREW  in  PERSIIORE,  WORCESTERSHIRE. 

p.   679. 

A  hiring  at  so  much  per  week',  a  month's  wages  or  a  month's  warning,  is  a  hiring 

for  a  year. 


The  KING  V.  WILLIAMS.— p.  681. 

To  a  mandamus  to  admit  A.  B.  into  the  office  of  churchwarden,  reciting  that  he 
had  been  duly  elected,  a  return  that  A.  B.  was  not  duly  elected,  is  good. 

Mandamus  to  the  defendant,  as  ofTicial  and  commissary  of  the  parish 
ol  Ilornchurch  and  liberty  of  IIavering-atte-13oucr,  in  the  county  of  Es- 
sex, to  swear  and  afiniit  into  tlicoflicc  of  cliurchwarden  .Tamos  Mcakins. 
'I'hc  mandamus  recited,  that  he  hiid  been  duly  nominated,  (dcctcd,  and 
chosen  into  the  place  and  ofllco  of  cbuicliwarden  of  the  said  parish.  Tlie 
defendant  having  returned,  that  Mcakins  was  not  duly  elected  into  the 
place  and  oflice  of  churchwarden:  the  case  now  came  on  for  argument  in 
the  crown  paper. 

lirodrick.  The  return  is  insufTioient.  The  commissary  iiad  no  right 
lo  exercise  any  judgment  on  the  subject.  lie  was  a  ministerial  ofllccr, 
and  was  bound  to  swear  in  the  churchwanlcn,  Rex  v.  liiccy  Ld.  Raym. 
138.  Rex  V.  Simpson,  Str.  610.  Rex  v.  niiile,  Ld.  Raym.  I.'i7f».  Rex 
V.  Harris,  3  Hurr.  1420.  / frrrf or <r s  ca^c  anil  Cripp^s  case,  1  Sid.  20r>. 

Eric,  contra,  was  stopped  by  the  ('ourt. 

liAVLEY  .1.  At  the  end  of  the  report  o(  Rex  v.  JVIiilc,  Ld,  Raym, 
1379,  Lord  Raymond  a(\(\ii  a  note,  ••  It  was  certainly  wrong,  for  the  re- 
turn was  a  gooil  return,  and  has  been  often  made  to  such  mandamuses 
and  actions  brought  upon  the  return,  and  tried;"  and  he  refers  to  Rex  v. 
I/arwood,  L(\.  I{nyn).  HOO.  There  the  mandamus  was  directed  to  the 
defendant,  a  commissary,  commanding  him  to  swnar  in  a  churchwarden, 
and  ho  returned  non  fuit  elcclus;  and  it  was  insisted  that  the  return  was 
ill.  that  the  arrhdearon,  who  was  only  to  obey  the  writ,  ronhl  not  judge 


328  Rex  v.  Williams.  M.  T.  1828. 

of  the  election  or  of  the  qualities  of  a  person  cliosen  hy  the  parish.  .But 
Iioymond  Q.  J.  and  Reynolds  i.  took  the  return  to  be  good.  But,  be- 
ing pressed  with  the  authority  oi  liexw.  JVhilc,  and  no  counsel  for  the 
defendant  appearing,  a  rule  nisi  was  made  for  a  peremptory  mandamus. 
Cause  was  afterwards  shewn;  but  the  Court  not  being  unanimous,  it  was 
ordered  to  come  on  again  in  the  paper.  Lord  Raymond  sd^ys,  "  I  never 
heard  it  stirred  again.  There  can  be  no  doubt  that  it  was  a  good  re- 
turn." In  Rex  V.  fFard,  Strang.  S94,  it  was  said  in  argument  to  have 
been  decided  in  Rex  v.  Harivood,  that  non  fuit  electus  was  a  good  re- 
turn. In  the  Queen  v.  Tivitty,  2  Salk.  433,  there  was  a  mandamus  to 
swear  a  churchwarden,  suggesting  that  he  was  duly  elected.  The  return 
was,  that  he  was  not  duly  elected.  It  was  objected,  that  it  was  not  a 
good  return.  Hall  C.  J.  says,  "Where  the  writ  is  to  swear  one  duly 
elected,  there  a  return  that  he  was  not  duly  elected  is  a  good  return,  for 
it  is  an  answer  to  the  writ,  but  where  it  is  to  swear  one  chosen  church- 
warden, there  a  return  that  he  is  not  duly  chosen  is  nought,  because  it  is 
out  of  the  writ,  and  evasive."  These  authorities  shew  that  the  return  in 
the  present  case  is  good. 

LiTTLEDALE  J.  The  commissary  has  a  right  to  say  by  the  return,  that 
he  is  not  bound  to  do  the  thing  which  he  is  required  to  do  by  the  man- 
damus. Here  he  does  say  so,  by  shewing  that  the  party  was  not  duly 
elected. 

Parke  J.  The  commissary  may  deny  any  material  allegation  in  the 
writ.  He  cannot  exercise  any  judicial  authority,  but  he  may  inquire 
whether  the  party  has  been  duly  elected,  otherwise  he  would  be  bound 
to  admit  any  person  who  presents  himself  for  admission,  even  if  he  knew 
the  fact  to  be  that  such  person  was  never  elected.  The  party  who  ob- 
tains the  mandamus  states  the  foundation  ot  his  right  in  the  writ.  The 
commissary  ma)-  deny  it.  In  this  case  he  has  done  it,  by  shewing  that 
the  party  who  seeks  to  be  admitted  was  not  duly  elected.  The  return, 
therefore,  is  suiTicient,  and  the  judgment  must  be  for  the  defendant. 

Judgment  for  the  defendant.  («) 

(a)  A  return   is  good  if  it  pursues  the  suggestion  of  the  writ.     Jiex  v,  Penrke, 
Strange,  1235.     Rex  v.  Hill,  1  Shower,  253. 


'I'he  KING  V.  The  Inhabitants  of  GREAT  DRIFFIELD^— p.  GS4. 

A  man  living  in  parish  A.  under  a  certificate  from  parish  B.  cannot  gain  a  settle- 
ment in  the  former  parisli  bj'  pinxhasing  an  estate  for  money. 


DANIEL  EDGE  v.  PARKER.— p.  G97. 

Where  the  assignees  of  a  l)anknipt  enter  the  premises  of  a  third  person  to  seize 
goods,  which  were  the  property  oftlie  banknipt,  it  is  not  necessary  that  an  ac- 
tion against  them  should  Ije  brought  witliin  three  months  after  the  fact  com- 
mitted; the  act  of  the  assignees  not  being  done  •'  in  pursuance  of  the  statute," 
within  the  meaning  of  the  G  G.  4.  c.  IG.  s,  44. 


8  Bahnewall  &  CuLSSWELL,  702.  329 


BENNETT  v.  EDWARDS.—  p.  702. 

An  assistant  overseer  appointed  under  the  59  G.  3.  c.  12.,  and  having,  by  virtue  of 
his  office,  the  poor-rate  in  his  custody,  is  liable  to  a  penalty  for  refusing  to  pro- 
duce it  lo  an  inhabitant  when  lawfully  demanded,  according  to  the  17  G,  2.  c.  3. 

Where  a  declaration  alleged  that  defendant  was  assistant  overseer;  that  a  rate 
for  the  relief  of  the  poor  was  made  and  duly  allowed;  and  although  defendant, 
as  such  assistant  overseer,  had  the  rate  in  his  possession,  and  although  plain- 
tiff, at  a  reasonable  time,  demanded  an  inspection  of  it,  and  tendered  Is.,  yet  de- 
fendant refused  to  produce  it,  whereby  he  forfeited  20/.:  Held,  on  motion  in  ar- 
rest of  judgment,  that  the  count  was  sufficient;  for  if  the  defendant  had  the  rate 
in  his  custody  as  assistant  overseer,  it  might  be  presumed  that  it  was  his  duty 
to  produce  it  when  lawfully  demanded. 


The  KING  V.  The  Inhabitants  of  RAWDEN— p.  708. 

Upon  the  trial  of  an  appeal,  the  appellant  having  proved  that  the  pauper  occupi- 
ed a  tenement  of  10/.  per  annum,  and  paid  rent  and  taxes  for  the  same,  the  re- 
spondents, in  order  to  shew  that  the  pauper  was  not  the  sole  tenant,  attempted 
to  prove  by  parol  that  the  premises  were  let  to  the  pauper  and  two  other  per- 
sons; but  the  witness  on  cross-examination  having  stated  that  the  letting  was 
by  a  written  instrument,  this  court  held  that  it  could  be  proved  only  by  the  pro- 
duction of  that  instrument. 

Upon  appeal  against  an  order  of  two  justices,  whereby  George  Clay- 
forth,  his  wife  ancl  chiUh-en,  were  removed  from  the  township  of  Idle,  in 
the  West  Hiding  of  Yorkshire,  to  the  township  of  Rawden,  in  the  same 
riding:  the  sessions  confirmed  tjie  order,  subject  to  tiie  opinion  of  this 
Court  on  the  following  case: — 

The  respondents  proved  a  settlement  in  the  appellants'  township. 
The  appellants  then  set  up  a  subsequent  settlement  gained  in  the  respon- 
dents' township  by  the  pauper's  having  been  rated,  and  having  actually 
[)ai(l  the  rates,  in  respect  of  a  tenement  of  the  annual  value  of  10/.  10s. 
in  that  townshi[).  It  appeared  that  in  December  1S23  he  began  to  occu- 
py tlie  tenement,  which  was  the  jjiopcrly  of  Joshua  ('lompton,  Esq.; 
that  he  occupied  it  fur  a  twelvt-motitii,  puid  the  rent  for  it,  and  also  the 
rates,  during  all  which  time  ho  resided  in  (hat  townslii|).  In  answer  to 
this  the  res[)on(Ients  insisted  that  tiie  pauper  did  not  lake  the  tenement 
of  INIr.  ('rom[)ton  solely,  but  jointly  with  his  father  and  falher-in-law; 
and  to  prove  thi.s,  they  called  Mr.  Robinson,  who  was  Mr.  Crompton's 
steward  at  that  time.  Me  stateil  that  he  did  not  know  who  occupictl 
the  tenement  in  (pieslion.  He  was  then  asked,  hy  the  counsel  for  the 
r(.-s|)ond(;nts,  who  it  was  lo  whom  he  had  let  the  tenen)ent,  and  who 
were  the  tenatils?  whereupon  tiie  a|)|)cllaiits'  counsel  interposed,  and 
asked  him,  whetiier  there  was  not  an  agreement  in  writing?  and  on  his 
admitting  tliat  there  was,  they  ol)jected  lliat  parol  evidence  of  the  letting 
and  tenancy  could  not  be  received.  The  court  of  rpiarter  sessions,  how- 
ever, jjcrmitled  the  question  to  be  put,  and  the  witness  slated  that  he 
had  let  the  tenement  to  the  j)auper,  the  pauper's  father  and  father-in- 
law;  that  they  were  the  tenants,  and  that  ihey  jointly  deliveicd  a  notice 
to  quit,  hut  that  In:  could  not  say  whether  this  notice  was  signed  with 
one  or  more  names.  I'poii  ihi.i  eviilence  the  court  of  quarter  sessions 
confirmed  the  order 

lihickburnc  and  Dundd'^  ni  suppoit  uf  ihe  oidci  oi  sessions.      The 

VOL.  XV.  'J- 


330  Rex  v.    Imi  ar.  ok  Citowi.AM).  M.  T.  1828. 

evidence  uaa  pro|)crly  rccciveil.  Nex  v.  JIo/i/  Trinity,  Ihtll,  7  B,  4t 
('.  Gil,  sliews  that  the  fiict  of  tenancy  may  be  proved  by  parol  evidence, 
even  thou.i:;li  it  appear  that  the  tenant  held  by  virtue  of  a  written  instru- 
ment.    That  case  is  precisely  in  point. 

Starkic  (and  JMilner  was  with  him),  contra,  was  stopped  by  the  Court. 

liAVLEY  J.  The  question  in  this  case  is,  Whether  the  evidence  o-f 
the  steward  wa&  sivflicient  to  rebut  a  prima  facie  case  of  tenancy,  which 
was  made  out  by  the  apj^ellants?  In  /»V.r  v.  The  Holy  Trinity,  Hull, 
the  question  at  the  sessions  was,  Whether  the  pauper  came  to  settle  on 
a  tenement  in  the  character  of  tenant?  The  proof  was,  that  he  occupied 
and  paid  rent.  The  Court  thought  that  was  prima  facie  evidence  that 
he  came  to  settle  in  the  character  of  tenant.  There  can  l>e  no  doubt  tJoat 
a  party  may,  by  keeping  out  of  view  a  written  instrument,  mate  out  by 
parol  testimony,  a  prima  facie  case  of  tenancy;  and  it  then  lies  on  the 
opposite  party  to  rebut  the  prima  facie  case  so  made  out.  Here  a  prima 
facie  case  was  made  out  by  the  appellants.  The  respondents  attempted 
to  vary  tliat  case  by  proving  that  in  fact  the  premises  were  let  to  the 
pauper  jointly  with  two  others^  but  that  letting  was  by  a  written  instru- 
ment. It  is  c[uite  clear  that  it  could  be  proved  only  by  the  production 
c^the  written  instrument. 

LiTTLEDALE  J.  Robinaou  was  called  to  prove  who  were  the  tenants. 
He  was  asked  to  whom  he  let  them:  he  said,  he  let  them  by  a  written 
instrument.  Parol  evidence  was  not  admissible  to  prove  that  fact,  for 
that  would  be  to  let  in  parol  proof  of  the  contents  of  the  written  instru- 
ment. This  case  is  perfectly  different  from  the  case  of  Rex  v.  The  Ho- 
ly Trinity,  Hull.  There  tlie  tenancy  was  proved  by  occupation  and 
payment  of  rent.  Tliat  was  prima  fiicie  evidence  of  tenancy.  Here 
the  parol  evidence  was  adduced  to  negative  the  presumption  of  tenancy 
arising  from  occupation  and  payment  of  rent. 

Pap.ke  J.  The  substance  ot  the  case  is,  that  the  paupei*  occupied  and 
paid  taxes  in  respect  of  a  tenement  of  tiie  yearly  value  of  10/,  The  respon- 
uents,  in  answer  to  that,  attemj)ted  to  shew  that  some  other  j)ersons  con- 
tracted jointly  with  the  pauper  to  hold  the  premises,  though  the  pauper 
alone  occupied  them.  That  fact  alone  must  be  proved  by  the  contract, 
which  was  in  writing. 

Order  of  sessions  quashed. 


The  KING  V,  The  Inhabitants  of  CROWLAND,in  the  Parts  of  HOL~ 
LAND  in  the  County  of  LINCOLN.— p.  711, 

By  an  act  of  parliament,  ])assed  for  draining  certain  fen-lands,  5000  acres  of  the 
said  fen-lands  were  vested  in  certain  trustees  as  a  recompense  to  the  under- 
takers; and  it  was  enacted,  that  all  tlie  iiilial^itants  that  might  be  thereafter  up- 
on anv  part  of  the  lands  so  allotted  to  the  trustees,  and  were  not  able  to  main- 
tain themselves,  should  be  maintained  by  the  said  trustees,  tlieir  heirs,  Sec,  and 
never  become  chargeable  to  all  or  any  of  the  respective  parishes  wherein  such 
inhabitants  should  reside:  Held,  that  the  lands  so  vested  in  the  trustees  were 
not  thereby  made  extra-parochial,  and  that  a  party,  by  hiring  and  service  on 
those  lands,  gained  a  settlement  either  in  the  parish  where  that  part  of  the  al- 
lotted lands  where  the  service  was  performed  was  situate,  or  in  the  allotted 
lands  thcmselve'/.,  which,  for  this  purpose,  were  to  be  considered  an  incorjio- 
rated  district. 


3  Baunewall  &  Cresswell,  717.  331 

«0E  on  the  demise  of  THOMPSON  and  Others  v.  CLARK.— p.  717, 

A  cottage  standing  in  the  corner  of  a  meadow  (belonging  to  tlie  lord  of  a  manor), 
but  separated  from  it  and  from  a  high  road  by  a  hedge,  had  been  occupied  for 
above  twenty  years  without  any  payment  of  rent.  The  lord  then  deinanded 
possession,  which  was  reluctantly  given,  and  the  occupier  was  told  that  if  he 
were  allowed  to  resume  possession  it  would  only  be  during  pleasure.  He  did 
resume  and  keep  possession  for  fifteen  years  more,  and  never  paid  any  rent: 
Held,  that  the  possession  was  not  necessarily  adverse,  but  might  be  presumed 
to  have  commenced  by  permission  of  the  lord. 

Ejectment  by  the  lessors  of  the  plaintifi",  and  devisees  and  mortga-gees 
of  John  Blackburn,  deceased,  who  had  been  the  owner  of  an  estate  in 
the  parish  of  Bradley,  and  lord  of  the  manor  of  Bradley, 

At  the  trial  before  Park  J.,  at  the  Summer  assizes  for  the  county  of 
Hants  1S2S,  it  appeared  that  th-e  action  was  brought  to  recover  posses- 
sion of  a  cottage,  which  stood  in  the  corner  of  a  meadow  next  adjoining 
the  high  road  in  the  village  of  Bradley,  in  the  county  of  Hants,  A  hedge 
and  high  bank  separated  the  cottage  from  the  meadow.  There  was  no 
waste  in  the  village,  but  there  was  waste  at  the  extremity  of  the  manor. 
The  land  on  both  sides  of  the  road  belonged  to  the  lessors  of  the  plaintifl". 
It  appeared  that  the  cottage  had  been  occupied  first  by  one  Weston, 
lifty-four  years  ago,  and  afterwards  by  one  James  Piiillips;  the  latter  oc- 
cupied it  forty  years,  till  his  death,  at  the  age  of  eighty,  in  1S27,  when 
it  was  sold  by  his  son  to  the  defendant.  One  Holloway,  who  had  been 
gamekeeper  to  Edward  Blackburn  in  his  manor  of  Bradley,  was  called 
as  a  witness  :  he  proved  that  in  1S13  he  went  with  the  Rev.  Henry 
Blackburn,  who  was  the  clergyman  of  the  parish  of  Bradley,  and  broth- 
er of  E.  Blackburn,  the  then  owner  of  the  estate,  to  Phillips's  house; 
that  H.  Blackburn  told  Phillips  and  his  wife,  that  he,  on  behalf  of  his 
brother,  had  come  to  take  possession  of  the  house,  and  desired  them  to 
get  another  cottage  as  soon  as  tliey  could,  as  his  (II.  Blackburn's)  brother 
wished  to  pull  it  down.  Phillips's  wife,  in  the  presence  of  her  husband, 
said,  she  had  as  much  right  to  be  there  as  Mr.  Blackburn,  for  they  had 
never  paid  any  rent.  II.  Blackburn  told  them  it  would  be  better  for 
them  to  give  up  quietpossession.  The  husband  said  to  his  wife,  "  It  i.9 
of  no  use  making  a  piece  of  work:  we  had  better  go  out  at  once." 
Phillips  and  his  wife  then  went  out  into  the  road,  without  tiie  garden-gate, 
and  were  asked  for  the  fastenings  or  keys:  they  said  tlicy  were  in  the 
habit  of  fastening  their  house  only  in  the  inside.  Phillips  was  then 
asked  if  there  was  not  a  fastening:  he  s:ii(l  there  was  a  chain,  which 
Holloway  looked  for  but  did  not  (inil.  Holloway  then  went  to  his  cot- 
tage, forty  yards  oil',  for  a  chain,  and  left  H.  Blackburn  aud  the  others  in 
the  road.  He  brought  a  chain,  put  it  round  the  wicket,  and  locked  it. 
H.  Blackburn  and  Holloway  tlien  went  into  the  house,  where  they  rc- 
niaini'd  a  few  miinjtf;s,  .nnd  then  unlocked  and  locked  the  gale.  H. 
f^lnckburn  then  told  Phillips  and  his  wife,  '*lf  he  let  them  in  again,  it 
would  be  during  his  brother's  pleasure;"  and  then  delivered  the  key  to 
Phillips.  It  appeared,  further,  that  Phillips  never  |)aid  any  rent  after- 
wards. Witnesses  were  called  on  the  part  of  the  defendant  to  impugn 
the  evidence  of  Holloway.  The  learned  Judge  told  the  jury,  that  an 
uninterrupted  possession  of  land  for  twenty  years  was  conclusive  of  the 
right  in  ejectment:  but  that,  if  during  the  twenty  years  the  party  in  pos- 
session had  made  any  acknowledgment  that  he  occupied  by  the  penni.^'- 
sion  of  another,  that  occupation  was  to  be  deemed  permissive,  and  not 
adverse;  that  the  payment  of  rent  during  the  twenty  yars  was  conelu- 


33:3  Hoi,  il.  Thompson  v.  Clauk.  M.  T.  1828. 

sivc  tvulcnce,  that  he  occupied  with  the  permission  of  that  person  to 
whom  he  liail  paid  it.  If  the  occupier  make  such  acknowledgment  other- 
wise than  by  the  payment  of  rent,  it  was  evidence  tliat  he  held  by  per- 
mission of  another.  The  learned  Judge  then  told  the  jury  to  consider 
wiiether  they  believed  the  evidence  of  Ilolloway;  and,  if  they  did,  then, 
whether  Phillips  did  not,  in  1S13,  acknowledge  that  he  occupied  the 
cottage  by  permission  of  E.  Blackburn  ?  if  they  believed  the  evidence  of 
Holloway,  the  lessors  of  the  plaintiflf  were  entitled  to  the  verdict.  The 
jury  having  found  for  the  plaintifl',  a  rule  nisi  for  a  new  trial  was  obtain- 
ed, against  which 

Selwifi  and  Follctt  shewed  cause,  and  relied  on  the  case  of  Doe  v. 
JVilkinson,  3  B.  &  C.  4 1 3. 

3Ierewei /ler  Serjt.  and  Greenwood  conira. 

Baylev  J.  I  think  that  the  rule  for  a  new  trial  ought  to  be  discharg- 
ed. There  was  no  evidence  to  shew  under  what  circumstances  the  cot- 
tage was  built.  It  may  have  been  built  by,  and  afterwards  occupied 
adversely  to  the  former  lord  of  the  manor;  or  it  may  have  been  built, 
and  afterwards  occupied  by  Phillips,  by  the  permission  of  the  lord. 
There  must  be  an  adverse  possession  for  twenty  years  to  give  title. 
Phillips  was  eighty  years  of  age  when  he  died;  he  probably  knew  Under 
what  circumstances  he  occupied  the  cottage,  and  whether  he  lived  there 
by  the  permission  of  Blackburn.  Now  Pliillips,  while  living  there  in 
1813,  did  an  act  which  was  evidence  of  an  acknowledgment  by  him  that 
he  occupied  by  the  permission  of  the  then  owner  of  the  estate.  The 
question  is,  Whether  the  jury  were  warranted  in  concluding  from  that 
act,  that  he  did  occupy  by  such  permission?  Itappeared  that  E.  Black- 
burn, under  whom  tlic  lessors  of  the  plaintiff  derived  title,  then  claimed 
the  cottage,  and  that  his  claim  was  reluctantly  acquiesced  in  by  Phillips 
and  his  wife,  for  they  surrendered  the  possession  to  him.  H.Blackburn 
then  told  Phillijjs  that  he  should  come  tlicrc  in  future  only  by  the  per- 
mission of  his  brother  E.  Blackburn,  and  Phillips  was  let  into  possession 
on  those  terms.  It  was  a  question  for  the  jury,  under  those  circum- 
stances, to  say,  whether  he  remained  in  the  cottage  by  adverse  title,  or  by 
the  permission  of  Blackburn.  Tiierc  certainly  was  not  in  this  case  any 
payment  of  rent,  the  case,  therefore,  may  not  be  so  strong  as  that  of 
Doe  V.  Wilkinson,  3  B.  &  C.  413.  But  there  was  a  case  for  the  con- 
sideration of  the  jury.  If  Phillips,  in  1813,  had  refused  to  give  up  pos- 
session, and  an  ejectment  had  been  brou<2;iit,  it  is  possible  that  the  then 
owner  of  the  estate  might  have  been  able  to  prove  by  witnesses  that 
Weston  and  Phillips  came  into  the  possession  of,  and  occupied  the  cot- 
tage by  permission.  I  cannot  say  the  jury  came  to  a  wrong  conclusion, 
and,  therefore,  think  tliat  the  verdict  on l-; lit  not  to  be  disturbed.  This 
rule  must,  therefore,  bo  discharged. 

J^iTTLEPALE    aud  Pakke  Js.  coucurrcd. 

Uulc  discharged. 


MORLANI)  and  Another,  Assignees  of  DICKINS  and  WARRICK, 
Bankrupts,  v.  PELLATT.— p.  722. 

Judgment  was  entered  up  on  a  warrant  of  attorney  given  by  two  joint  traders,  and 
H  ft.  fa.  issued,  returnaljle  on  tlie  2d  of  May.  On  tlic  1st  of  that  month  the 
blicrifTs  officer  received  from  the  defendants  the  moncv  directed  to  be  levied. 


8  Barnewall  &  Cresswell,  728.  333 

On  the  2d  of  May  one  of  them  committed  an  act  of  bankruptcy,  and  the  other 
on  the  5th.  On  the  11th  a  commission  of  bankrupt  issued,  and  on  the  19th  the 
sheriff  paid  over  the  money  to  the  execution-creditor.  In  an  action  by  the  as- 
signees :  Held,  that  he  was  entitled  to  retain  it,  not  being  creditor  having  a  se- 
curity at  the  time  of  the  bankruptcy. 


W.  THOMAS  V.  WILLIAM  COOK.— p.  728. 

Where  A.  at  the  request  ef  B.,  entered  into  a  bond  with  him  and  C.  to  indemnify 
D.  against  certain  debts  due  from  C.  and  D.,  and  B.  i)romised  to  save  A.  harm- 
less from  all  loss  by  reason  of  the  bond  :  Held  that  this  promise  was  binding, 
although  not  in  writing,  and  that  A.  might  recover  from  B.  the  whole  of  the 
monies  which  he  was  compelled  to  pay  by  virtue  of  tlie  bond. 

Assumpsit.  The  declaration  stated  that  on,  &c.  a  certain  partnership 
in  trade  between  one  W.  Cook,  since  deceased,  and  one  N.  D.  Morris, 
was  dissolved;  that  it  was  agreed  between  W.  Cook,  since  deceased,  and 
Morris,  that  the  former  should  take  upon  himself  the  payment  of  certain 
debts  Cspecified  in  the  declarationj;  and  that  it  was  also  agreed  that  a 
bond  of  indemnity,  executed  by  W.  Cook,  since  deceased,  and  two 
other  persons,  should  be  given  to  Morris,  to  save  him  harmless  from  the 
payment  of  the  said  debts.  And  thereupon  afterwards,  to  wit,  on,  &c. , 
in  consideration  that  the  plaintiff,  at  the  request  of  tiie  defendant,  would, 
together  with  the  defendant  and  W.  Cook,  since  deceased,  execute  a 
bond  of  indemnity  to  Morris  in  the  sum  of  4100/.  conditioned  to  save 
him  harmless  from  the  said  debts;  the  defendant  undertook  and  pro- 
mised the  plaintiff  that  he,  tlie  defendant,  would  save  harmless  and  in- 
demnify him  from  all  payments,  damages,  costs,  and  expenses  which 
he  (plaintiff)  should  or  might  incur,  bear,  pay,  sustain,  or  be  put  unto 
by  reason  or  means  of  his  so  executing  the  said  writing  obligatory. 
Averment,  that  plaintiff  was  afterwards  compelled  to  pay  on  account  of 
the  said  debts  the  sum  of  3G0/.,  and  that  defendant  had  not  indemnified 
iiim.  The  second  and  third  counts  were  in  substance  tlie  same.  The 
fourth  count  alleged,  that  in  consideration  that  the  plaintiff,  at  the  re- 
quest of  the  defendant,  would,  as  surety  for  W.  Cook,  since  deceased, 
together  with  the  said  W.  Cook  and  the  defendant,  make  and  draw  a 
certain  bill  of  exchange  for  500/.  upon  certain  jiersons  (named\  and 
would  indorse  and  deliver  the  same  to  Morris,  in  order  that  he  might 
negotiate  the  snnie  for  his  own  use,  llie  defendant  undertook  to  indem- 
nify the  plaintiir  from  any  loss  or  damage  l)y  reason  of  his  drawing  antl 
indorsing  the  bill.  Averment,  that  plaintiff  did  draw  and  indorse  the 
liill  in  manner  aforesaid,  and  was  afterwards  by  reason  thereof  com- 
pelled  to  pay  it,  whereof  the  defendant  had  notice,  but  did  not  indem- 
nify him.  Counts  for  money  lent,  paid,  had,  and  received,  and  on  an 
account  stated.  Plea,  the  general  isstie  and  statute  of  limitations.  Re- 
plication, that  defendant  pronii.scMl  within  six  years.  At  the  trial  before 
Park  J.,  at  the  Hereford  Lent  assizes  182.S,  it  appeared  that  the  |)Iain- 
lill  and  defendant  had  executed  the  bond,  and  drawn  the  bill  mentioned 
in  the  declaration;  that  the  defendant  had  reque-sted  the  ])laintiff  to  do 
so,  and  j)romised  that  be  shotdd  not  be  a  loser.  It  was  also  j)roved, 
that  on  account  of  payments  made  by  the  plaintiff  towards  the  debts  spc- 
cifieil,  and  the  bill  of  exchange,  a  sum  of  '100/.  remained  due  to  him  in 
1825.      A  promissory  note  for  thrit  sum  given   by  W.  Cook,  since  dc- 


334        Thomas  v.  Cook.  M.  T.  1828. 

ceaseJ,  to  the  plaiiitifT,  and  bearing  date  in  the  year  1823,  was  then  pro- 
duced to  the  defendant,  and  he  signed  it,  and  altered  the  word  J,  at  the 
beginning,  to  fJ'e.  After  this  time  the  plaintifl'  received  from  the 
estate  of  W.  Cook,  since  deceased,  100/.,  leaving  a  deficiency  of  300/. 
Several  acknowledgments  of  a  debt  by  the  defendant  within  six  years 
were  proved.  For  tlie  defendant  it  was  contended,  that  the  note  was 
void  on  account  of  the  alteration,  and  that  the  plaintiff  could  not  recover 
on  the  special  counts  for  want  of  a  written  agreement,  the  promise  there 
laid  being  to  answer  for  the  debt  of  a  third  person,  and  consequently 
that  he  could  only  recover  against  the  defendant  as  co-surety  on  the 
count  for  money  paid,  one  moiety  of  the  300/.  The  learned  Judge  di- 
rected the  jury  to  find  a  verdict  for  the  plaintiff  for  300/.,  and  gave  the 
defendant  leave  to  move  to  reduce  it  to  150/.  A  rule  nisi  for  that  pur- 
pose was  obtained  in  last  Easter  term,  against  which 

TauntoJi  and  Chilton  now  shewed  cause,  and  relied  on  Rex  v.  Pen- 
dleton, 15  East,  449;  Dover  v.  Maestaer,  5  Esp.  92;  Williams  v.  Lea- 
per,  2  Wils.  30S,  3  Burr.  1SS6;  Iloulditch  v.  Milne,  3  Esp.  86;  Cast- 
ling v.  ^^ubert,  2  East,  325. 

Russell  Serjt.  and  Curwood,  contra,  cited  Jones  v.  Cooper,  Gowper, 
227;  Matson  v.  Wharam,  2  T.  R.  SO. 

Bayley  J.  It  is  provided  by  the  fourth  section  of  the  statute  of 
frauds,  that  <'No  action  shall  be  brought  to  charge  the  defendant  upon 
any  special  promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
another  person,  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  by  some  other  person 
thereunto  by  him  lawfully  authorized."  Here  the  bond  was  given  to 
Morris  as  the  creditor;  but  the  promise  in  question  was  not  made  to 
him.  A  promise  to  him  would  have  been  to  answer  for  the  default  of 
the  debtor.  But  it  being  necessary  for  W.  Cook,  since  deceased,  to  find 
sureties,  the  defendant  applied  to  the  plaintiff  to  join  him  in  the  bond 
and  bill  of  exchange,  and  undertook  to  save  him  harmless.  A  promise 
to  indemnify  does  not,  as  it  appears  to  me,  fall  within  either  the  words 
or  the  policy  of  the  statute  of  frauds;  and  if  so,  there  was  sufficient  evi- 
dence to  entitle  the  plaintiff  to  a  verdict  for  300/. 

Parke  J. (a).  This  was  not  a  promise  to  answer  for  the  debt,  default, 
or  miscarriage  of  another  person,  but  an  original  contract  between  these 
parties,  that  the  plaintiff  should  be  indemnified  against  the  bond.  If 
the  plaintiff,  at  the  request  of  the  defendant,  had  paid  money  to  a  third 
person,  a  j)romise  to  repay  it  need  not  have  been  in  writing,  and  this 
case  is  in  substance  the  same.  The  rule  for  reducing  the  verdict  ought, 
therefore,  to  be  discharged. 

Rule  discharged. 

(a)  Litlicdale  J.  was  at  tlic  Old  Riuley. 


The  KING  v.  The  Inhabitants  of  MATTISIIALL.— p.  733. 

ficforc  the  execution  of  an  indenture,  tlie  master  suid  that  the  intended  appren- 
tice should  have  better  clothes.  The  apprentice  then  applied  to  the  parish 
officers,  who  at;reed  to  give  him  21.  on  the  execution  of  the  indenture,  for  the 
purpose  of  buying  clothes,  which  they  did  accordingly  ;  Held,  that  tlie  money 


8  BaRNEWALL  &  CUESSWELL,  767.  335 

paid  by  the  parish-officers  was  an  expense  incurred  by  reason  of  an  indenture 
of  apprenticeship,  within  the  meaning  of  the  56  G.  3.  c.  139.  s.  11,  and,  there- 
fore, that  the  indenture  recjuircd  the  assent  of  two  justices. 


ROWE  V.  BRENTON— p.  737. 

A\'hcrc  the  crown  is  interested  the  Attorney-General  may,  as  a  matter  of  right, 
demand  a  trial  at  bar. 

W'liere  in  trover  for  copper  ore  it  was  proved  that  the  plaintiff  was  in  possession 
of  land  in  which  he  sunk  a  shaft  and  raised  the  ore  in  question,  and  the  same 
witness  on  cross-examination  proved  that  the  ore  was  taken  away  by  a  person 
who  had  a  shaft  in  an  adjoining  close,  and  who  was  getting  the  same  lode  of 
copper  ore  under  the  plaintiff's  land  when  he  sunk  his  shaft:  Held,  that  this 
was  prima  facie  evidence  of  the  plaintiff 's  title  to  the  ore,  which  must  be  left 
to  the  jury. 

On  account  of  the  interest  which  the  crown  has  in  the  duchy  of  Cornwall,  all  acts 
which  affect  the  possessions  or  revenues  of  the  duchy  are  to  be  considered 
as  public  acts;  and,  on  this  ground,  a  document  purporting  to  be  a  caption  of 
seisin  taken  to  the  use  of  tlie  first  Duke  of  Cornwall  by  certain  persons  assign- 
ed by  his  letters  patent  to  do  so,  was  received  in  evidence  to  shew  the  rights 
of  the  Duke. 

An  ancient  extent  of  crown  lands  found  in  the  proper  ofHce,  and  purporting  to 
have  been  taken  by  a  steward  of  the  king's  lands,  and  following  in  its  construc- 
tion the  directions  of  the  stat.  4  Ed.  1,  will  be  presumed  to  have  been  taken 
under  competent  authority,  although  the  commission  cannot  be  found. 

The  enrolment  of  a  lease  granted  by  the  Duke  of  Coi-nwall  is  evidence,  in  the 
same  manner  as  if  it  had  been  granted  by  the  crown  when  there  is  no  Duke  of 
Cornwall. 

Where  in  each  of  several  manors  belonging  to  the  same  lord,  and  part  of  the  same 
district,  it  appeared  that  there  was  a  class  of  tenants  answering  the  same  de- 
scription, and  to  whom  their  tenements  were  granted  by  similar  words  :  Held, 
that  evidence  of  what  rights  had  been  enjoyed  by  those  tenants  in  one  manor, 
might  be  received  to  shew  what  were  their  rights  in  another. 

.\nswers  to  interrogatories  may  be  read  without  producing  the  interrogatories,  if 
they  cannot  be  found. 


UOE  on  the  Demise  of  ROBV  v.  ]MAISEY.(a)— p.  167. 

In  ejectment  by  mortgagee  against  mortgagor,  it  is  not  necessary  to  demand  pos- 
session before  action  brought.  Where  tlu-  mortgagee  suffers  the  mortgagor  to 
remain  in  possession  of  tl>e  mortgaged  j)remiscs,  the  latter  is  not  tenant  at  will 
to  the  former,  but  at  most  tenant  by  sufferance  only  ;  and  may  be  treated  either 
as  tenant  or  trespasser  at  the  election  of  the  mortgagee. 

Ejectment.  At  the  trial  hcforo  Gaseleci.,  at  the  last  (ilouroster 
Summer  assizes,  it  appeared  tliat  the  premises  had  hccii  mortgaged  in 
fee  hy  the  defendant  to  thf;  lessor  of  the  plaintilT,  that  the  mor(g;.ip;e  was* 
forfeited,  and  that  the  defendant  remaiiunl  in  possession.  The  usual 
evidence  of  the  mortgage  deed  was  given,  hut  there  was  no  jiroof  ofany 
demand  of  possession.  I'pon  this  it  was  contended,  tliat  tiie  plaintiff 
ought  to  be  nonsuited;  but  tho  learned  judge  directed  a  verdict  for  the 
plaintifl',  with  liberty  to  the  dr^cndant  to  move  to  enter  a  nonsuit. 

Taljmird  now  moved  nrcor»lingly,  to  enter  a  nonsuit.  I  If  admitted, 
Miat  tlic  long  established  practice   had  bc«n  fur  n   mortgagee  to  recover 

(i/)  riiis  f-aic  was  moved  cail\  in  ilic  term. 


336  Wells  v.  Guuney.  M.  T.  1828. 

without  prool  ol  any  notice;  but  he  contciulcd  that  the  mortgagor,  when 
allovveil  to  remain  in  possession,  was  in  the  situation  of  tenant  at  will  to 
the  moitgagee,  and  therefore  could  not  he  treated  as  a  trespasser  till  the 
determination  of  the  will;  and  he  cited  J\irt7n(lgc  v.  Bcrc,  5  li.  &  A. 
(iOI,  to  shew  that  the  relation  of  landlord  and  tenant  subsisted.     But 

Lord  Tentekdkn  C.  J.  The  mortgagor  is  not  in  the  situation  of 
tenant  at  all,  or  at  all  events,  he  is  not  more  than  tenant  at  sufierance; 
but  in  a  j)eculiar  character,  and  liable  to  be  treated  as  tenant  or  as  tres- 
passer at  the  option  of  the  mortgagee. 

Rule  refused. 


WHITTAKER  v.  WHITTAKER  and  Another.— p.  7GS. 

In  actions  by  original,  the  judgment  relates  to  the  essoignday  of  the  term  in  which 

it  is  signed. 


WELLS,  Administrator,  V.  GURNEY.— p.  769. 

Where,  by  the  contrivance  of  plaintiff's  attorney,  a  party  had  been  arrested  on  a 
Sunday  on  criminal  process,  for  the  purpose  of  effecting  his  arrest  on  civil 
process,  and  he  was  detained  in  custody  till  Monday,  and  then  arrested  on  the 
civil  process,  the  Court  ordered  him  to  be  discharged  out  of  custody. 

Quxrc,  Whether  a  party  can  be  arrested  a  third  time  for  the  same  cause  of 
action. 

A  RULE  nisi  had  been  obtained  for  discharging  the  defendant  out  of 
custody,  he  having  been  arrested  a  third  time  for  the  same  cause  of 
action.  Upon  cause  being  shewn,  the  court  referred  it  to  the  master  to 
report  on  the  fi\cts.  He  made  the  following  report: — The  action  was 
brought  on  a  bond;  and  on  the  7th  July,  the  defendant  was  arrested  the 
first  time,  and  discharged  from  custody  on  the  ground  that  there  was  no 
ac  etiam  to  the  writ.  He  was  immediately  arrested  a  second  time,  and 
discharged  by  Bay  ley  J.  on  the  ground  that  the  first  action  had  not  been 
discontinued.  On  Sunday,  the  16th  November,  he  was  apprehended 
upon  a  warrant  for  an  alleged  assault  upon  one  Parlett,  and  on  the  fol- 
lowing day  taken  to  Bow  Street,  where  he  was  bailed  for  the  assault, 
and  arrested  there  again  the  third  time.  The  defendant  in  his  affidavits 
suggested,  that  the  charge  of  assault  was  fictitious,  and  a  contrivance  of 
Bozon,  the  plaintiff's  attorney,  to  get  the  defendant  to  Bow  Street  for 
the  purpose  of  arresting  him.  He,  however,  failed  in  establishing  that 
tlie  charge  was  fictitious  altogether,  but  proved  that  there  was  a  hostile 
feeling  towards  him  on  the  part  of  Bozon  the  attorney,  and  that  the  latter 
and  Parlett  were  acting  in  concert,  and  that  the  carrying  of  the  defend- 
ant to  Bow  Street  was  made  use  of  to  effect  the  arrest. 

Crowder  and  Kelly  now  shewed  cause.  The  defendant  was  properly 
arrested.  The  charge  of  assault  was  not  fabricated.  An  actual  assault 
was  proved  before  the  magistrate,  and  thodefendant  was  ordered  to  find 
bail.  The  warrant  was  taken  out  by  l*arlett  before  he  had  any  com- 
munication with  Bozon,  and  not  for  t!je  purpose  of  this  cause.  It  might 
lawfully  be  made  available  afterwards  for  the  purpose  of  executing  civil 
process.     This  case  is  distinguishable  from  Birch  v.  Prodger,  1  N  Rep, 


8  Baunewall  &  Cresswell,  769.  337 

135:  there  tlie  person  arrested  was  illegally  seized  in  the  first  instance 
by  the  plaintift'in  the  cause;  the  original  taking  was  unlawful.  In  this 
^-case,  the  original  taking  was  lawful,  and  was  not  efl'ected  by  the  plain- 
tifF.  If  some  contrivance  be  not  allowed  to  apprehend  those  who  seek 
to  elude  the  service  of  process,  the  administration  of  justice  will  be  fre- 
quently prevented.  It  is  sulficient  if  the  means  used  be  lawful.  The 
third  arrest  is  not  vexatious.  [Fcn^ke  J.  Is  there  any  case  in  which  a 
•  third  arrest  for  the  same  cause  of  action  has  been  held  to  be  valid  ?] 
There  is  no  such  case:  but,  on  principle,  such  an  arrest  may  be  valid. 
Where  the  defendant  has  been  released  from  an  arrest  previously  made, 
on  a  point  of  form,  and  the  plaintiff  has  been  guilty  of  no  vexatious  con- 
duct, he  is  entitled  to  arrest  the  defendant  again;  and  in  Kearney  v. 
King,  1  Chit.  272,  afler  a  nonsuit  on  the  ground  of  variance  in  a  former 
action,  in  which  the  defendant  was  arrested,  it  was  held,  that  he  might 
be  arrested  in  a  second  action  for  the  same  cause. 

Campbell  (with  whom  were  F.  Pollock  and  Flolroyd),  contra,  was 
stopped  by  the  court. 

Bayley  J.  An  arrest  cannot  be  made  on  civil  process  on  a  Sunday; 
but  vcr}'  different  means  may  be  used  to  execute  civil  and  criminal  pro- 
cess. For  the  purpose  of  executing  the  latter  description  of  jiroccss,  the 
outer  door  may  be  broken  open;  while  for  that  of  executing  the  former, 
it  cannot.  In  this  case,  the  defendant  has  been  a  third  time  arrested; 
and  it  is  clear  that  the  criminal  process  was  used  on  the  Sunday  to  give 
the  plaintiff  an  opportunity  of  making  the  arrest  on  the  civil  process  on 
Monday,  and  by  the  execution  of  the  criminal  process  on  the  Sunday, 
the  defendant  was  taken  into  custody  and  detained  till  Monday,  and  the 
plaintiff  was  thcieby  enabled  to  arrest  him  on  the  civil  process  on  that 
day.  It  is  said  that  the  plaintiff  might  lawfully  use  these  means  to  arrest 
him;  but  I  think,  that  as  the  arrest  on  civil  process  would  not  have  been 
good  upon  the  Sunday,  the  arrest  on  that  process  on  the  Monday,  ef- 
fected by  means  of  the  previous  arrest  on  the  criminal  j)rocess  and 
detention  till  the  Monday,  ought  not  to  be  allowed.  I  admit  that  con- 
trivances must  sometimes  be  used,  in  order  to  execute  the  civil  process 
of  courts  of  justice;  but  those  contrivances  ought  to  be  such  as  may  be 
lawfully  used  on  the  execution  of  civil  process,  and  an  arrest  by  means 
of  criminal  process  is  not  a  lawful  contrivance. 

Pahkk  J.  I  think  it  very  d(jubtful  whether  a  plaintiff  can,  in  any 
case,  lawfully  arrest  his  debtor  a  third  tiinu  for  the  same  cause  of  action. 
The  general  rule  is,  that  a  m.in  shall  not  be  arrested  a  second  time  lor 
the  s:Ime  cause  of  action.  Jiut  wliere  a  plaintilf  has  not  been  able  to 
inakc  the  first  arrest  available,  he  may  then,  provided  it  be  without  any 
vexatious  conduct  on  his  part,  arrest  a  second  time.  That  is  an  excep- 
tion to  the  gent-ral  rule.  Without  giving  any  decided  opinion  on  that 
point,  I  doubt  whether  the  exception  can  be  extended  to  warrant  a  third 
arrest.  Hut,  for  the  reasons  given  by  my  l)rothei-  Baylo/,  I  think  the 
\\\\{i  ought  to  be  ma'le  absolute. 

Rule  absolute.      Tlif  delVndant  to  bring  no  action  if 
Bozon  should  within  two  (hiys  p:iy  the  cm)!*1s. 


The  KINC  v.  ROHKUT  SIIIITON.     p.  77J. 

I  lie  statutr  i^  C  3.  c.  139.  s.  ?.  enacts,  lint  in  nil  cases  when-  the  residence  or 
VOL.  XV.  43  ''»• 


333         Syson  r.  Johnson.  M.  T.  1828. 

cBtahlislimciit  of  business  of  the  person  to  whom  any  child  shall  be  bound,  shRll 
be  williin  a  dift'erent  county  from  that  within  which  the  place  by  the  officers 
•whereof  such  child  shall  l)e  bound  shall  be  situated,  and  in  all  other  cases  where 
the  justices  of  the  peace  for  the  district  or  place  within  which  the  place  by  the 
officers  whereof  such  child^hall  be  liound  shall  be  situated,  and  who  shall  sign 
the  allowance  of  the  indenture  by  which  such  child  shall  be  bound,  shall  not 
have  jurisdiction,  every  indenture  by  which  such  child  shall  be  bound  shall  be 
allowed,  as  well  by  two  justices  of  the  peace  for  tlie  county  or  district  within 
which  tlie  place  by  the  oHicers  of  which  such  child  shall  be  bound  shall  be  situ- 
ated, as  bv  two  justices  of  the  peace  for  the  county  or  district  within  which  the 
place  shall  be  situated  wherein  such  child  shall  be  intended  to  serve:  Held, 
that  in  such  case  the  indenture  nmst  be  allowed  by  four  distinct  persons,  two 
of  them  being  justices  of  the  county  from  which  the  apprentice  is  to  be  bound; 
and  the  other  two  being  justices  of  the  county  into  which  he  is  to  be  bound. 


The  KING  V.  JOHN  WINTER,  Esq.— p.  785. 

An  order  of  justices,  for  diverting  and  stopping  up  a  highway,  substituted  for  the 
old  highway  a  new  road,  Avhich  passed  partly  over  a  road,  described  in  the 
order  as  a  new  line  of  turnpike  road.  The  sessions  confirmed  the  order,  sub- 
ject to  a  case.  This  Court  quashed  the  order  of  sessions,  because  it  did  not 
appear  on  the  face  of  the  order,  or  of  the  case,  that  the  public  had  the  same 
permanent  right  to  pass  over  the  new  road  as  they  had  to  pass  along  the  old 
onCv 

QuKre,  Whether  justices  can  divert  a  road  for  carriages  and  continue  it  for  foot- 
jjussengers. 


SYSON  qikI  Anoliicr  v.  JOHNSON  and  Others.— p.  795. 

Bv  statute  16  &  17  Car.  2.,  the  trustees  or  adventurers  for  draining  Deeping  Fen 
were  seised  of  10,0.56  acres  of  land,  and  the  rates  and  taxes  for  completing  the 
drainage  of  the  fen  were  to  be  levied  on  the  10,036  acres.  They  were  called 
taxable  lands.  There  were  5000  acres  called  free  lands,  and  the  other  lands 
in  the  fen  consisted  of  common  land.  The  adventurers  were  at  their  own  costs 
and  charges  to  keep  the  river  Glen  with  sufficient  diking,  roading,  scouring, 
and  banking.  By  a  subsequent  act  of  the  41  (i.  3.  reciting  the  former  act,  and 
that  the  works  of  drainage  were  insufficient,  and  that  the  owners  and  pro- 
prietors of  free  lands,  and  persons  interested  in  the  commons,  notwithstanding 
their  exemption  from  the  costs  of  making  works  of  drainage,  togetlier  with  the 
adventurers,  being  desirous  to  obtain  a  better  drainage  for  all  the  said  lands, 
and  more  efTectually  to  protect  the  same  from  injury  by  a  brcuch  in  any  of  the 
banks  of  the  river,  had  agreed  that  the  respective  works  of  drainage  therein- 
after mentioned  sliould  be  made,  erected,  maintained,  and  supported,  at  the 
expense  of  the  ti-ust.s,  proprietors,  and  persons,  in  the  proportions  thereinafter 
mentioned.  By  a  subsequent  clause,  the  commissioners  under  that  act  were 
thereby  required  v/ell  and  sufficiently  to  enlarge,  deepen,  and  scour  out  the 
river,  and  straighten  the  course  thereof  where  necessary,  and  enlarge  and 
straighten  the  bunks  of  the  river  in  such  manner  as  in  the  judgment  of  the  com- 
missioners should  be  requisite;  and  tlic  costs  of  executing  all  the  said  works 
were  to  be  paid  and  borne  by  the  several  persons  then  respectively  liable  to 
the  repairs  of  such  banks,  in  conjunction  with  the  owners  and  jiroprietors  in- 
terested in  the  drainage  of  the  said  commons,  in  such  proportions  as  to  the 
ccmmissicners-sliculd  seem  just  and  equitable,  and  as  they  by  their  av/ard  should 
appoint,  and  such  res])eclivc  i)anks,  after  the  commissioners  should  have  com- 
pleted the  same,  should  from  time  to  time  be  repaired  by  such  persons,as  the 
commissioners  should  by  their  award  direct:  Held,  that  the  adventurers  were 
not,  by  this  statute,  released  from  the  obligation  imposed  on  them  by  the  16  8c 
17  Car.  2.  of  cleansing  and  securing  the  river  Glen. 


8  Bakxewall  6c  Cresswell,  813.  339 


DOE  dcm.  WARREN  v.  AARON  BRAY.— p.  Sl;^. 

An  entry  in  the  register-book,  by  the  minister  of  the  parish  of  the  baptism  of  a 
child,  which  had  taken  place  before  he  becmK-  minister,  or  had  any  connec- 
tion with  the  parish,  and  of  which  he  received  information  from  the  parish 
clerk,  is  not  admissible  in  evidence,  nor  is  the  private  memorandum  of  the  fact 
made  by  the  clerk,  who  was  present  at  the  baptism. 

Ejectment.  At  the  trial  before  Vaughan  B.,  at  the  Spring  assizes 
for  the  county  of  Worcester  1828,  the  question  was,  Whether  the  de- 
fendant, Aaron  Bray,  was  the  legitimate  son  of  his  father  ?  On  the  part 
of  the  defendant,  among  other  evidence,  the  register-book  of  baptisms 
of  the  parish  of  Castlemorton,  in  the  county  of  Worcester,  for  the  year 
1776,  was  produced;  and  it  contained  an  entry  of  baptism  of  Aaron, 
the  son  of  John  Bray,  and  Elizabeth  his  wife,  on  the  6th  of  February 
1776.  It  appeared,  on  cross-examination  of  the  witness,  that  the  entry 
was  in  the  hand-writing  of  tlie  Rev.  Dr.  Smith,  and  that  he  did  not  be- 
come minister  of  the  parish  till  the  year  1777;  that,  during  the  years 
1775  and  1776,  the  then  incumbent  of  the  parish  was  very  inlirm  ;  and 
that  the  then  clerk,  who  continued  in  office  for  several  years  afterwards, 
entered  on  slips  of  paper  an  account  of  the  baptisms,  &.c;  and  his  me- 
moranda, which  had  been  preserved,  were  produced,  and  there  was  no 
doubt  that  Mr.  Smith  had  made  from  them  the  entries  in  the  register- 
book.  It  was  objected,  under  the  circumstances,  that  neither  the  re- 
gister nor  the  memoranda  made  by  the  clerk  were  admissible  in  evi- 
dence. The  learned  Judge  received  them.  A  verdict  having  been  found 
for  the  defendant,  a  rule  nisi  for  a  new  trial  had  been  obtained,  on  the 
ground,  that  the  evidence  ought  not  to  have  been  received. 

Cajnpbell  and  R.  V.  Richards  now  shewed  cause,  and  cited  Newham 

v.  Raithby,  1  Phill.  15;  May  v.  May,  2  Sir.  1072,  cited  3  Burn,  299, 

the  70th  canon,  3  Burn's  E.  L.  290.  ^ 

Cur,  adv.  vult. 

Batlet  J.  There  must  be  a  new  trial  in  this  case.  The  register 
ought  not  to  have  been  received  in  evidence.  Registers  should  be 
made  up  promptly,  and  by  the  person  whose  duty  it  is  to  inakc  them 
up.  The  register  of  baptism,  in  this  case,  purports  to  bear  date  the  6tli 
of  February  1776,  but  it  was  not  made  up  till  Juno  1777,  and  tiicn  it 
wan  made  up, — not  by  the  person  who  was  minister  of  the  parish  at 
the  time  of  the  baptism,  or  by  a  person  who  appeared  at  that  lime  to 
have  any  connection  with  the  parish, — but  by  one  who  afterwards  be- 
came the  minister  of  the  parish.  It  must  be  taken,  therefore,  that  he 
made  this  entry  after  the  death  of  the  minister  of  the  parish  who  wa» 
present  at  this  baptism.  He  was  recording  a  fact,  therefore,  not  within 
liis  own  knowledge,  but  one  of  which  he  received  information  from  the 
clerk.  I  think,  therefore,  the  register  itself  clearly  ought  not  to  have 
been  recoivdl  in  evidcnrr-.  But,  then,  supposing  there  was  no  register, 
it  has  been  said  that  the  clerk's  memoianda  were  admissible  evidence 
to  prove  all  the  farts  that  could  lie  proved  by  the  register.  It  was  not 
his  duty  to  make  such  memoranda:  they  are  mere  private  entries.  May 
v.  May,  to  which  I  referred  during  the  argument,  shews  that  a  d.ny- 
l)ook,  from  which  the  entries  in  a  register  wvmi  made,  is  not  admis.iible 
in  evidence.  The  editor  of  Burn's  Eccl.  Law,  after  slating  that  case 
.  in  vol.  iii.  p.  29.3,  mak^s  the  following  obsnrvaiion  :  — "  If,   iiidffvl,  the 


.31')  Dot;  d.  VVarrbn  v.  BiiAY.  M.  T.  1828. 

entry  in  ll»c  ilay-book,  representing  the  plaintiff  as  illegitimate,  had 
been  signed  by  tbe  reputed  father  or  the  nnother,  or  made  under  their 
direction,  such  evidence  would  have  been  admissible  as  the  declaration 
of  a  deceased  parent  on  a  question  of  legitimacy;  for  the  declarations 
of  deceased  persons,  supposed  to  have  been  married,  (who  might  them- 
selves be  examined,  if  alive,)  are  admissible  to  disprove  the  fact  of  mar- 
riage, Jicx  v.  Bramlcy,  G  T.  R.  330. ;  but  if,  on  the  other  hand,  in  the 
absence  of  such  proof,  the  entry  appeared  to  be  merely  a  private  memo- 
randum, kept  for  the  purpose  of  assisting  the  clerk  to  make  up  the  re- 
gister (and  of  that  nature  it  seems  here  to  have  been  considered),  in  that 
case  it  should  not  be  received  as  the  original  authenticated  entry."  The 
editor,  therefore,  thought  that  the  entry  in  the  day-book  would  not  be 
receivable  in  evidence  in  the  character  of  a  register,  but  that  if  it  had 
been  signed  by  the  reputed  father  and  mother,  it  might  have  been  re- 
ceived as  a  declaration  of  the  deceased  parents.  In  the  case  oi  Neiuham 
V.  Raithby,  1  Phill.  315.,  the  copies  of  the  register  of  a  dissenting 
chapel  were  not  allowed  to  be  pleaded  in  evidence  in  the  ecclesiastical 
court,  on  the  ground  that  they  were  mere  private  memoranda,  and  not 
copies  of  public  documents,  which  are  in  official  custody.  So,  in  this 
case,  the  entries  made  by  the  clerk  were  mere  private  memoranda. 
They  were  not,  therefore,  admissible  in  evidence.  The  rule  for  a  new 
trial  must  be  made  absolute. 

Rule  absolute  for  a  new  trial 


r.Nl)  OF  MICHAELMAS  TF.RM. 


REPORTS  OF  CASES 

ARGUED   A>D   DETERMINED 

IN    THE 

COURT    OF    COMMON    PLEAS, 

AND 

OTHER  COURTS. 


By  peregrine  BINGHAM, 

O?  THE   MIDnr.E  TEMri.E,    ESQ.,    UAKniSTER   AT   LAW 


VOL.  V. 

Containing  Cases  Ironi  Tiunitv  Term,  !)  Geo.  IV.   18JS.  t<i  Eastek 
Term,  10  Geo.  IV^  1S2'»,  botlj  inr-hisiv(« 


CASES 

ARGUED   AXD  DETERMINED 

IN    THE 

COURT    OF    COMMON    PLEAS, 

AND  OTHER  COURTS, 

IN 

TRINITY  TERM, 

In  the  Ninth  Year  of  the  Reign  of  George  IV. — 1823. 


CALVERT  V.  TOMLIN.— p.  1. 

Where  a  cognovit  was  given  on  the  Sth  of  February  in  Hilary  term,  with  a  con- 
dition that  judgment  should  not  be  entered,  unless  default  should  be  made  in 
payment  on  the  ensuing  1st  of  April,  and  the  defendant  died  in  Hilary  vaca- 
tion, before  the  1st  of  April,  judgment  entered  up  on  the  10th  April  in  Hilary 
vacation,  after  defendant's  death,  was  held  regular,  as  relating  to  the  first  day 
of  Hilary  term,  as  also  execution  tested  of  a  day  in  that  term  anterior  to  the 
defendant's  death. 

The  defendant,  on  the  Sth  of  February  in  Hilary  term  last,  gave  a 
cognovit  for  .50/.,  with  a  condition  "that  no  judgment  should  be  entered 
up  or  execution  issue,  unless  default  were  made  in  payment  the  1st  of 
April  next." 

On  February  IfJth  he  died.  The  plaintiff  on  the  10th  of  April,  in 
Hilary  vacation,  entered  up  judgment,  and  issued  a  fi.  fa.  tested  in  Hi- 
lary term,  of  a  day  anterior  to  defendant's  death. 

Wilde  Serjt.  obtained  a  rule  nisi  to  set  aside  this  judgment  and  ex- 
ecution, as  having  been  entered  up  and  issued  after  the  death  of  the 
defendant. 

Cross  (•'crjt.  shewed  cause.  The  judgment  has  relation  to  the  first 
day  of  Hilary  term,  which  was  anterior  to  the  defendant's  death;  and 
ihe  writ  being  al.so  tested  of  a  day  anterior  to  his  death,  the  proceed- 
ings are  regular.  A  cognovit  is  a  mere  acknowledgment  of  a  debt, 
which  authorizes  the  plaintiff  to  .sign  judgment  at  any  time,  and  is  dif- 
ferent from  a  warrant  of  attorney:  IVyhorne  v.  lioss,  2  Taunt.  68; 
lirai^ner  v.  Langniead,  7  T.  R.  20.  24  ;  JFaghornc  v.  Laiigmead, 
1  n.  &P.  571. 

If'ildc,  contra,  cilc<l  2  Archb.  Pr.  K.  15.  23. 

I^EST  C.  J.  As  the  law  stands  at  present,  a  cognovit  is  revoked  by 
the  death  of  the  party,  allhongh  it  is  dillicult  to  find  a  satisfactory  reason 
for  ihis,  since  the  party  has  nothing  more  to  do  after  giving  the  cogno- 


344  Calvert  i\  ToMLiN.  T.  T.  1S28. 

vit,  xvliicli  tlisliiiguishcs  it  from  the  case  of  a  submission  to  an  award. 
The  Courts,  however,  have  allowed  a  liction  to  prevail  for  the  further- 
ance of  justice,  and  in  Bragner  v.  Langmcad,  it  was  decided,  that  a 
"judgment  signed  in  any  part  of  the  term  or  subsequent  vacation,  re- 
lates back  to  the  first  day  of  the  term,  notwithstanding  the  death  of 
the  defendant  ])cforc  judgment  actually  signed;  and  that  an  execution 
against  the  goods  of  the  defendant  might  be  taken  out  upon  it,  tested 
the  first  day  of  the  term. 

So  in  Jl'dghornc  v.  Langmead,  it  was  holden,  that  if  a  fi.  fa.  were 
tested  before  defendant's  death,  but  delivered  to  the  sheriff  and  executed 
after,  the  execution  was  regular. 

These  cases  are  direct  authorities  in  support  of  the  present  judgment, 
unless  there  be  any  thing  in  the  circumstance,  that  if  the  party  had 
been  alive,  the  money  could  not,  according  to  the  agreement,  have  been 
levied  during  that  portion  of  the  term  which  elapsed  previously  to  his 
death.  The  learned  writer  who  makes  the  distinction,  does  not  cite 
any  case,  and  it  does  not  appear  in  the  decisions  I  have  mentioned, 
whether  the  judgment  could  have  been  entered  up  before  the  death  of 
the  party  or  not.  In  the  present  instance,  the  money  was  not  levied 
in  fact  till  after  the  period  at  which,  according  to  tlie  agreement,  it  was 
to  be  paid;  and  if  a  judgment  entered  up  at  that  time  will  relate  to  a 
period  prior  to  the  death  of  the  party,  we  have  ill  that  justice  and  forms 
require.  The  proceedings  have  been  regular,  and  the  rule  must  be 
discharged. 

Park  J.  I  am  of  the  same  opinion.  The  cases  which  have  been 
cited  are  decisive  of  the  point.  The  teste  of  the  writ  corresponded 
with  the  judgment  in  being  anterior  to  the  death  of  the  party,  and  the 
judgment,  though  not  entered  up  till  the  money  was  payable,  having 
relation  to  the  first  day  of  term,  the  proceedings  must  be  esteemed  re- 
gular, according  to  the  case  of  Bragner  v.  Langmead. 

BuRROUGir  J.  The  debt  was  ascertained  in  the  life-time  of  the  party, 
and  time  was  given  to  pay  it  till  April  1st.  The  intent  of  the  parties 
was,  that,  at  all  events,  judgment  should  be  entered  up,  although  time 
was  to  be  allowed  for  the  payment  of  the  debt.  The  judgment  when 
entered  up,  has  relation  to  a  time  when  the  defendant  Avas  living,  and 
the  proceedings  are,  therefore,  regular. 

Gaselee  J.  I  think  the  proceedings  are  regular.  There  is  a  dis- 
tinction between  a  cognovit  and  a  warrant  of  attorney.  When  judg- 
ment is  entered  up  on  a  warrant  of  attorney,  it  must  be  shewn  that  the 
party  is  living,  because  if  the  Court  know  him  to  be  dead,  they  will 
not  allow  judginent  to  be  signed.  But  where  there  is  already  a  confes- 
sion of  the  debt  on  record,  the  plaintiff  does  not  want  the  authority  of 
the  Court  to  enter  up  judgment,   which   follows  as  of  course  upon  the 

'°g"°^'^-  Rule  discharged. 


JOHNSON  V.  GILLETT.— p.  5. 

The  Court  of  C.  P.  has  not  authority  under  the  6  G.  4.  c.  16,  s.  96.  to  compel 
parties  to  enrol  the  proceedings  under  a  commission  of  bankrupt.  The  aji- 
plication  must  be  made  to  the  Court  of  Chancery, 


5  Bingham,  7.  345 


LAWRENCE  v.  HOOKER  —p.  G. 

In  an  action  between  A.  and  B.,  the  Court  refused  a  rule  to  compel  B.  to  pro- 
duce, for  the  purpose  of  stamping,  an  agreement  between  B.  and  C,  although 
by  an  affidavit  of  C.'s  it  appeared  that  ti\c  art  complained  of  I)y  A,  arose  out 
this  agreement. 


REVETT  V.  BROWN.— p.  7. 

The  plaintiff,  who  had  built  a  chapel,  conveyed  it  to  defendant  by  a  deed  the 
validity  of  which  was  questionable.  Defendant  took  possession,  and  gave  the 
key  to  a  gardener,  who,  with  his  permission,  lent  it  to  the  plaintiff  topreach  in  the 
chapel.  The  plaintiff  thereupon  locked  the  chapel,  and  refused  to  re-deliver 
the  key  :  Held,  that  he  had  not  sufficient  possession  to  maintain  trespass. 

Trespass  for  breaking  and  entering  a  cliapcl.  The  defendant  jnsU- 
ficd  the  trespass  under  Hudson,  who  was  alleged  to  he  the  owner  of  the 
freehold. 

At  the  trial  before  Garrow  B.  Suffolk  Summer  assizes  1S27,  it  ap 
peared  that  plaintiff  had  built  the  chapel,  but  afterwards  being  in  em- 
barrassed circumstances,  he  conveyed  all  his  property,  including  the 
chapel,  as  it  was  alleged,  to  Hudson,  in  trust  for  the  payment  of  plain- 
tiff's creditors.  The  deed  was  executed  with  a  blank,  for  a  sum  alleged 
to  be  due  to  one  IVIills,  which  blank  was  afterwards  filled  up  with  the 
sum  of  14,858/.  as  a  balance  due  to  Mills,  the  recital  of  the  deed  stating 
that  a  balance  had  been  adjusted  between  him  and  the  plaintiff. 

Hudson,  who  was  put  into  possession  under  this  deed,  loft  the  chapel 
in  the  care  of  a  gardener,  to  whom  he  delivered  the  key,  with  permis- 
sion to  allow  the  plaintiff"  to  preach  in  the  chapel. 

The  plaintiff,  who  had  been  accustomed  to  preach  in  the  chapel,  bor 
rowed  the  key  of  the  gardener  for  that  purjiose,  and  then  having  locked 
the  chapel  up,  refused  to  re-deliver  the  key,  whereupon  the  defendant, 
by  Hudson's  orders,  broke  the  chapel  open.  The  gardener  bad  been 
occustomed  to  lend  the  key  to  preachers  of  various  persuasions,  who 
frcrpiently  preached  in  succession,  on  the  same  <Iay. 

The  validity  of  the;  deed  was  much  disputeil  at  the  trial;  but  without 
giving  any  opinion  on  that  point,  the  learned  Baron  left  it  to  the  jury 
to  say  whether  the  plaintiff  was  suflicienlly  in  j)os^-essioii  of  the  pre- 
mises to  maintain  trespass  against  a  wrong-doer.  Subject  lo  (his  qucs- 
lion,  wbiclj  was  also  reserved  for  the  Court,  a  verdict  was  found  for 
the  plaintiff;  which 

iSlor/t's  Serjt.  moved  to  set  aside  anrl  enter  a  nonsuit  instead,  on  the 
j^round  that  the  possession  of  the  premises,  if  not  tlio  coniplcle  title, 
was  in  Hudson. 

fVi/f/e  Serjt.  shewed  cause,  and  argued  that  the  deed  to  Hudson  was 
void  by  reason  of  the  filling  up  Ihf:  blank  after  excculion,  and  that, 
therefore,  Hudson  took  nothing  un'ler  if.  No  opinion,  however,  was 
given  on  this  point;  the  dcri.sifin  of  the  Court  turning  allogrtlicr  on  the 
f|uestion,  Whether  the  plaintiff  had  a  suflirifnt  pos-;fssion  lo  maintain 
Irrspa.ss. 

lirsT  C  .1.  The  plaintiff  had  not  such  n  possession  as  would  enlille 
liim  to  sue  in  trespass.      Pos««cs9ion    alone    is   indeed  «;nfliri('nl    (nv  that 

VOL.    XV.  44 


'MO  Wood  v.  Nunn.  T.  T.  IH'^S. 

j)urpusc,  as  against  a  vviong-docr;  but  then  it  must  bee  clear  and  exclu- 
sive possession.  Now  the  gardener  had  the  key  of  the  chapel,  not  from 
the  plaintilV,  but  from  Hudson,  and  he  delivered  it  to  the  plaintifl,  not 
as  a  symbol  of  possession,  but  merely  for  the  purpose  of  preaching.  If 
that  were  sufficient,  any  person  who  preaches  in  a  chapel  might  main- 
tain trespass  against  the  owner.     This  rule  must  be  maile  absolute. 

Park  J.  If  the  plaintiflf  had  enjoyed  the  constant  and  exclusive  use 
of  the  chapel,  the  case  might  have  been  difl'erent;  but  the  key  was  de- 
livered to  the  gardener  with  permission  to  allow  the  defendant  to  preach, 
and  many  others  preached  there  also.  This  was  not  sufficient  evidence 
of  possession  to  go  to  the  jury. 

The  rest  of  the  Court  concurred,  and  the  rule  was  made 

Absolute. 


WOOD  V.  NUNN.— p.  10. 

A  landlord,  to  whom  rent  was  in  arrear,  hearing  his  tenant  and  a  stranger  dis- 
puting about  the  property  of  an  article  on  the  premises,  early  in  the  morning 
entered  and  said,  "The  article  shall  not  be  removed  till  my  rent  is  paid." 
The  stranger,  nevertheless,  removed  the  article.  On  the  same  day,  after 
the  removal,  the  landloi-d  sent  his  broker  to  distrain  for  the  rent : 

Held,  that  the  distress  was  sufficiently  commenced  by  the  landlord  to  entitle  him 
to  the  article  in  question. 

Trover  fof  a  lathe.  At  the  last  Cambridge  Summer  assizes,  before 
%.^lexander  C.  B.,  it  appeared  tliat  the  lathe  in  question  was  in  the  house 
of  one  Saunders,  who  owed  the  defendant  two  years'  rent. 

One  morning,  between  six  and  seven  o'clock,  the  defendant  hearing 
that  the  plaintiif  was  about  to  remove  the  lathe,  entered  Saunders's 
house,  where  he  found  the  plaintiff  and  Saunders,  who  had  formerly 
been  partners,  disputing  about  the  properly  in  the  lathe,  the  plaintiff 
endeavouring  to  remove  it  as  his  own,  under  an  award,  and  Saunders 
averring  that  he  would  die  b}^  the  lathe  rather  than  suffer  it  to  be  re- 
moved; upon  which,  the  defendant,  laying  hands  on  the  machine,  said, 
— "  I  will  not  suffer  this  or  any  of  the  things  to  go  off  the  premises  till 
my  rent  is  paid."  The  plaintiff,  nevertheless,  succeeded  in  carrying 
the  lathe  off  the  premises;  but  the  defendant,  about  twelve  o'clock  the 
same  day,  made  a  formal  distress,  by  his  bailiff,  of  the  goods  in 
Saunders's  shop,  and  caused  the  lathe  to  be  retaken  and  brought  back 
to  the  shop. 

On  the  part  of  the  plaintiff  it  was  urged,  that  there  had  been  no  dis- 
tress till  the  defendant  sent  his  bailiff,  and,  the  lathe  having  been  car- 
ried away  before  that  time  without  fraud,  on  a  bona  fide  assertion  of 
property,  the  defendant  had  no  right  to  retake  it.  The  learned  Chief 
Baron  thought  the  distress  was  sufficiently  made  by  what  fell  from  the 
defendant  upon  his  entering  Saunders's  house  early  in  the  morning,  and 
said  it  would  be  a  strange  stale  of  law  if  a  landlord,  finding  the  goods 
on  the  premises  in  peril  of  being  removed,  could  not  commence  a  dis- 
tress at  once,  and  complete  the  formal  part  of  the  proceeding  afterwards. 
A  verdict  having  been  found  for  the  defendant, 

IVilde  Serjl.  obtained  a  rule  nisi  for  a  new  trial,  which  the  Court, 
without  hearing  the  other  side,  now  called  on  him  to  support.  He 
urged,  that  the  lathe  belonging  to  the  plaintifl)  and  having  been  detain- 


5  Bingham,  10.  317 

ed  on  the  premises  by  the  wrongful  resistance  of  the  tenant,  the  land- 
lord had  no  right  to  seize  it.  If  he  were  allowed  to  do  so,  a  landlord 
and  tenant  might  always  collude,  to  satisfy  rent  with  the  property  of  a 
stranger. 

But  the  lathe  was  removed  bona  fide  before  the  distress  took  place; 
for  the  defendant,  by  sending  his  broker  or  bailiff  at  twelve,  shewed 
clearly,  that  in  his  view  of  the  afl'air,  no  distress  had  been  made  in  the 
morning. 

Best  C.  J.  There  was  no  collusion  here  between  landlord  and  te- 
nant, for  Saunders  claimed  the  lathe  for  himself,  and  not  for  his  land- 
lord; nor  is  it  true  that  the  lathe  was  removed  before  the  distress  com- 
menced. The  distress  commenced  when  the  landlord  came  on  the  pre- 
mises, and  said — "This  shall  not  go  till  my  rent  is  paid."  From  that 
time  the  property  was  in  the  custody  of  the  law,  and  being  improperly 
removed,  the  landlord  had  a  right  to  get  it  back.  The  verdict  for  the 
defendant  must  stand. 

Park  J.  There  was  no  collusion  between  the  landlord  and  tenant, 
and  there  is  no  ground  for  making  the  rule  absolute. 

BuRnouGH  J.  The  distress  commenced  when  the  landlord  came  on 
the  premises;  and  as  he  was  not  privy  to  the  transactions  between  the 
plaintiff  and  Saunders,  the  rule  must  be  discharged. 

Gaselee  J.  The  lathe  was  on  the  premises  in  the  morning  when 
the  landlord  came,  and  he  was  entitled  to  distrain  it.  There  is  no  ne- 
cessity for  entering  into  the  supposed  case  of  a  tenant  bringing  property 
on  the  premises  for  the  purpose  of  its  being  distrained.  No  such  fact 
appears  in  the  present  case,  and  the  rule  must  be 

Discharged. 


WHALE  V.  LENNY  and  Others,  Assignees.— p.  12. 

In  an  action  against  tlic  assignees  of  a  bankrupt,  the  Court  refused  to  permit 
defendants  to  plciui  non  est  factum,  and  that  the  premises  did  not  come  to 
them  by  assignment. 

Covenant  against  the  defendants,  as  assignees  of  a  bankrupt.  Pro- 
fert  excused,  on  the  ground  that  the  deed  was  in  the  possession  of  the 
defendants. 

Jones  Serjt.  moved  to  plead  several  matters,  viz  first,  non  est  factum; 
second,  that  the  deed  was  not  in  the  possession  of  tiie  defendants;  third, 
that  the  premises  did  not  come  to  the  defendants  by  assignment;  fourth, 
performance. 

The  Court  refused  to  allow  non  est  factum,  and  that  the  premises  did 
not  come  to  the  defendants  by  assignment,  to  stand  together,  and  put 
Jonei  to  his  election,  when  he  abandoned  the  non  est  factum. 

Upon  a  former  day  the  Court  gavo  out,  in  a  case  which  was  not 
pressed  to  a  decision,  that  where  a  title  was  deduced  through  a  number 
of  succes-sive  links,  they  would  only  allow  the  defendant  to  traverse  the 
material  allegation,  and  not  to  take  issue  on  every  distinct  averment  of 
lact  immaterial  to  the  decision  of  the  cause. — See  iiulhj  v  Bishoit  of 
Exctrvy   post.  p.  300. 


318  liELD  V.  Caiir.  T.  T.  1828. 

FIELD  and  Otlieis  v.  CARR.— p.   13. 

Dcfciuhint  accfpltfl  a  bill  of  exchange  drawn  by  C,  who  indorsed  it  to  his  bank- 
ers; they  entered  it  on  the  credit  side  of  C.'s  account,  but  the  bill  having  been 
dishonoured,  entered  it  afterwards  on  the  debit  side.  A  few  days' after  this  dis- 
honour, defendant  paid  to  C.  the  amount  of  the  bill,  but  omitted  to  take  it  out 
of  the  banker's  hands. 

C.  subsequently  paid  in  to  the  banker  on  his  general  account  more  than  enough  to 
cover  all  the  items  of  the  account  preceding  the  bill  item,  and  that  Item  also, 
and  the  bankers,  for  a  space  of  three  years,  treated  the  bill  as  paid,  they  then 
sued  defendant  oir  his  acceptance: 

Held,  that  he  was  not  liable. 

This  was  an  action  on  two  bills  of  exchange  drawn  by  Thomas  Craw- 
sliaw,  payal)lcat  four  months  after  date,  on  the  defendant,  and  accepted 
by  him.  They  became  due  February  22,  1823,  and  amounted  together 
to  132/.  4f/.,  the  price  of  certain  wool  which  defendant  had  bought  of 
Crawshaw,  These  bills  Crawshaw  indorsed  to  the  plaintiffs,  his  bankers, 
who  before  they  became  due,  entered  the  amount  of  them  to  his  credit 
as  cash.  When  due  they  were  dishonoured:  upon  which  the  plaintiffs 
entered  to  Crawshaw's  debit  an  equal  sum,  as  for  bills  returned. 

In  Apiil  1823,  a  few  days  after  the  bills  were  due,  defendant  paid  the 
amount  of  them  to  Crawshaw,  but  neglected  to  require  him  to  deliver 
up  the  bills. 

Crawshaw  continued  his  banking  account  with  the  plaintiffs,  and  by 
the  13th  of  January  1824  had  paid  in  to  his  own  credit  a  sufficient  sum 
to  cover  all  the  items  placed  to  his  debit  up  to  that  date,  including  the 
amount  of  the  above  bills.  There  was  no  specific  appropriation  of  these 
payments  to  any  particular  deliit;  but  the  balance  against  him  upon  a  set- 
tlement of  accounts  at  the  end  of  the  year  1823,  was  52G/.  9,s.;  at  theend 
of  1824,  lOGl/.  9^.;  and  at  the  end  of  1825,  426/.  25.  \0d.  The  balances 
were  duly  struck,  and  no  demand  was  made  in  respect  of  these  bills.  In 
April  1S26  Crawshaw  became  bankrupt;  the  plaintiffs  proved  their  full 
demand  against  him  under  the  commission,  and  deposed  that  they  had 
received  no  security  or  satisfaction  whatever,  save  and  except  certain 
bills  of  exchange  referred  to  in  the  deposition,  and  which  were  not  the 
bills  in  question.  From  the  lime  the  bills  became  clue,  to  the  com- 
mencement of  this  action,  in  1827,  no  demand  was  ever  made  by  the 
plaintiffs  on  the  defendant  in  respect  of  the  bills. 

Upon  the  trial  before  Bayleyi.,  York  Summer  assizes  1827,  a  verdict 
was  found  for  the  plaintiffs.   Whereupon 

Jones  Serjt.  obtained  a  rule  nisi  to  set  it  aside  upon  affidavits  disclos- 
ing the  state  of  the  accounts  between  Crawsliaw  and  the  plaintiffs,  and 
some  other  matters  in  respect  of  which  the  defendant  had  been  sur- 
prised at  the  trial. 

Spankie  Serjt.  who  shewed  cause  against  the  rule,  argued  that  the 
j)laintiffs  always  held  these  bills  as  an  additional  security ;  that  the  accep- 
tor could  not  be  discharged  except  by  payment  to  the  holder;  and  that, 
therefore,  the  plaintiffs'  claim  did  not  fall  within  the  rule  in  ClayloiCs 
case,  1  Mer.  572. 

Jones  relied  on  Clayloii'scdiSe-,  Bodenham  v.  Piirchus,  2  B.  &  A.  39, 
and  Simson  v.  Ingham,  2  li.  &  C.  05. 

Best  C.  J.  Upon  the  principle  established  in  Claylon''s  case,  and  re- 
cognised in  Bodenham  v.  Purchas,  and  Simson  v.  Ingham,  the  defen- 
dant is  entitled  te  have  this  rule  made  absolute,      'i'he  action  is  brought 


5  Bingham,  13.  349 

oil  two  bills  of  exchange  drawn  by  Thomas  Crawshawon  the  defendant, 
at  four  months'  date,  and  accepted  by  him.  They  were  given  for  the 
price  of  certain  wool  purchased  by  the  defendant  of  Crawshaw,  and  in- 
dorsed by  Crawshaw  to  the  plaintiffs,  his  bankers.  In  April  1823,  short- 
ly after  the  bills  became  due,  the  defendant  paid  the  amount  of  them  to 
Crawshaw,  but  neglected  to  require  him  to  deliver  up  the  bills.  That 
payment  alone  would  not  have  discharged  the  defendant,  the  plaintiffs 
having  been  at  that  time  the  holders,  and  entitled  to  the  amount  of  the 
bills.  But  the  ground  on  which  the  defendant  is  entitled  to  have  this  rule 
made  absolute  is,  that  the  plaintiffs  not  only  entered  the  bills  to  the  de- 
bit of  Crawshaw,  but  treated  them  as  having  been  paid  ;  and  if  so,  ac- 
cording to  the  rule  in  Clayton's  case,  the  defendant  is  discharged.  There 
is  indeed  an  exception  to  that  rule,  but  the  exception  does  not  apply 
here.  Bayley  J.  says,  2  B.  &.  A.  45,  "The  principle  is  this, that  where 
there  are  distinct  accounts,  and  a  general  payment,  and  no  appropriation 
made  at  the  time  of  such  payment  by  the  debtor,  the  creditor  may  ap- 
ply such  payment  to  which  account  he  pleases;  but  where  the  accounts 
arc  treated  as  one  entire  account  by  all  parties,  that  rule  does  not  apply." 
— "It  certainly  seems  most  consistent  with  reason,  that  where  payments 
are  made  upon  one  entire  account,  such  payments  should  be  considered 
in  discharge  of  the  earlier  items.*'  The  Master  of  the  Rolls  says,  "In 
such  a  case,"  (that  is,  a  banking  account,)  "  there  is  no  room  for  any 
other  appropriation  than  that  which  arises  from  the  order  in  which  the 
receipts  and  payments  take  place,  and  are  carried  into  the  account.  Pre- 
sumably it  is  the  sum  ffrst  paid  in  that  is  first  drawn  out.  It  is  the  first 
item  on  the  debit  side  of  the  account  which  is  discharged  or  reduced  by  the 
first  item  on  the  credit  side.  The  appropriation  is  made  by  the  very  act 
of  setting  the  two  items  against  each  other." 

Neither  the  Master  of  the  Rolls  nor  Bayley  J.  say  that  such  act  is 
conclusive.  It  is  undoubtedly  open  to  the  party  to  shew  a  payment  on 
account  of  the  particular  Ijill,  but  in  the  absence  of  proof  of  any  such  ap- 
plication of  the  sums  paid  in,  the  first  payments  must  be  ajiplicd  to  the 
discharge  of  the  first  debts.  In  the  present  instance,  although  there  was 
always  a  balance  against  Crawshaw,  yet  enough  had  long  since  been 
paid  in  to  discharge  all  the  items  of  the  account  preceding  the  bills,  and 
the  bills  also.  And  the  defendant's  case  is  stronger  than  those  which 
have  preceded  it,  because  in  1823,  1821,  and  1825,  the  ijlainliffs  treat- 
ed these  bills  as  ()aid.  In  lS2fi,  when  Crawshaw  became  bankrupt,  no- 
thing was  said  about  the  bills,  and  it  was  not  till  1827  that  the  plaintiffs 
thought  of  calling  on  the  defendant.  Under  these  circumstances,  it 
would  be  inconsistent  with  every  principle  of  law  and  honesty  that  the 
plaintiffs  should  recover.  The  rule  settled  by  Sir  W.  (Uraiit  has  received 
the  sanction  of  every  court  in  VVeslininster  Hall. 

Pakk  J.  The  rule  in  Chiylini's  case  has  been  ado[)tod  by  all  tho 
courts  in  Westminster  Hall,  iind  the  only  (piestion  is,  whether  the  facts 
here  come  within  it?  I  am  of  opinion  that  they  do,  and  that  the  case  is 
pregnant  with  circumstances  in  favour  of  the  defendant. 

Gaselee  .1.  (a)  The  c|ucstion  i.s,  whether,  under  all  the  circumstances, 
the  plaintiQs' claim  has  been  destroyed?  I  think  it  has  by  their  own 
conduct  ;  and  in  that  view  it  is  not  material  whether  they  have  been 
paid  by  ('arr  or  not.  By  the  course  of  llu;ir  accounts  it  is  admitted  that 
they  have  been  paid  by  Crawshaw. 

Rule  absolute. 
inynuyTO\i!;U  J,  was  at  Chambers. 


'ViO         Ahciiuishop  OF  TtiAM  t;.  Robeson.  T.  T.  1828. 


ARCHBISHOP  of  TL'AM  v.  ROBESON  and  Another.— p.  17. 

It  is  a  libel  to  publish  of  a  Protestant  Archbishop,  that  he  attempts  to  convert 
Catholic  priests  by  oficrs  of  money  and  preferment. 

I^liiKL.     The  declaration  stated  that  tlie  plaintiff,  at  the  time  of  pub- 
lication, was,  and  still  is,  Archbishop  of  Tuam  : 

That  at  the  time  of  publication  one  Thomas  Maguire  acted  as  a  priest 
o      he  Roman  Catholic  church  in  Ireland  : 

That  the  plaintiflhad  acted  honourably  as  Archbishop  : 

'I  hat  the  plaintifl'  never  promised  nor  oflered  to  Maguire,  nor  to  any 
person,  any  sum  of  money  as  an  inducement  for  him  to  cease  to  act  as 
a  priest  of  the  Roman  Catholic  church,  or  to  accede  to  become  a  Pro- 
testant clergyman;  nor  a  living  of  SOO/.  a  year,  nor  any  living  for  such 
a  purpose;  nor  did  he  ever  offer  any  living,  but  in  the  due  discharge  of 
his  duty  as  Archbishop: 

Yet  the  defendants  well  knowing  the  premises,  but  contriving  and 
maliciously  intending  wrongfully  to  injure  the  plaintiff  in  his  good  name, 
fame,  credit,  and  reputation,  and  in  the  respect  and  good  opinion  which 
he  had  obtained,  and  to  bring  him  into  public  scandal  and  disgrace,  and 
to  cause  it  to  be  believed  that  the  plaintiff  had  misconducted  himself  as 
such  Archbishop  as  aforesaid,  and  had  promised  to  the  said  Thomas 
Maguire  a  large  sum  of  money  and  a  living  of  800/.  a  year,  and  that 
the  plaintiff  had  written  to  a  Protestant  clergyman  to  make  such  offer,  in 
order  to  induce  the  said  Thomas  Maguire  to  accede  to  become  a  Pro- 
testant clergyman,  did,  on  the  Sth  of  November  1827,  at  Westminster, 
&c.  falsely,  wickedly,  and  maliciously,  print  and  publish,  and  cause  and 
procure  to  be  printed  and  published,  in  a  certain  newspaper  called  The 
Morning  Herald,  a  certain  false,  scandalous,  and  malicious  libel,  of  and 
concerning  the^plainliff,  and  of  and  concerning  the  conduct  of  the  plaintiff 
as  Archbisiiop,  and  of  and  concerning  the  plaintiff's  supposed  offer  to 
the  said  Thomas  Maguire  as  aforesaid,  containing  therein  the  false, 
scandalous,  malicious,  and  libellous  matter  following,  of  and  concerning 
the  plaintiff,  and  of  and  concerning  the  conduct  of  the  plaintiff  as  such 
Archbishop  as  aforesaid,  and  of  and  concerning  the  plaintiff's  supposed 
offer  to  the  said  Thomas  Maguire  as  aforesaid;  that  is  to  say, 

"Ireland:  Dublin,  November  Sth.  The  speech  of  the  Rev.  Mr. 
Maguire  (a)  at  the  Roscommon  Catholic  mcetmg,  has  excited  a  pro- 
digious sensation.  The  second  reformation  did  not  need  this  last  shock 
to  destroy  it,  but  now  that  it  has  come,  a  vestige  of  the  fabric  does  not 
remain.  Who  do  you  think  was  the  Archbishop  who  promised  Maguire, 
the  priest  of  the  mountains,  1000/.  in  cash,  and  a  living  of  800/.  a  year? 
Why,  no  less  a  personage  than  the  Archbishop  of  Tuam!!!  This  state- 
ment I  received  this  day  from  Mr.  M.  himself.  The  Archbishop  wrote 
to  a  Protestant  clergyman  desiring  him  to  make  the  offer,  and  to  shew 
the  letter;  but  not  to  surrender  it  into  his  possession,  unless  Maguire 
was  disposed  to  accede,  and  the  induction  into  the  living  was  to  take 
place  within  eight  days!  All  these  facts  are  capable  of  proof,  and  will 
be  proved,  if  their  authenticity  is  denied.  A  writ  has  been  served  on 
him  by  a  country  innkeeper,  at  whose  house  he  resided  for  about  three 

(o)  The  innuendoes  of  identity  arc  omitted  to  avoid  laolixity. 


5  Bingham^  17.  351 

months,  three  years  since  (when  he  first  took  possession  of  his  misera- 
ble parish),  for  the  seduction  of  his  daugliter.  As  a  proof  of  the  fair- 
ness of  the  saints,  it  may  be  observed,  that  with  the  5000  copies  of  the 
pubhshed  report  of  the  discussion  between  Pope  and  Maguire,  which 
they  printed,  they  have  bound  up  Dr.  Otway's  Strictures  on  the  Argu- 
ments!!! The  Report,  it  was  understood,  should  go  out  on  its  own 
merits:" 

Meaning,  by  the  said  libel,  that  the  plaintiff  had  offered  the  said 
Thomas  INlaguire  1000/.  in  cash  and  a  living  of  8001.  a  year,  if  the  said 
Thomas  Maguire  would  accede  to  become  a  Protestant  clergyman. 

There  were  other  counts,  but  the  innuendo  was  the  same  in  all;  and 
though  the  introductory  statements  diflered,  none  of  them  stated  any 
matter  of  fact  as  explanatory  of  the  libel,  except  that  the  plaintiff  was 
Archbishop  of  Tuam,  and  that  Maguire  had  acted  as  a  Roman  Catholic 
priest. 

The  defendants  pleaded  the  general  issue;  and  a  verdict  with  50/. 
damages  having  been  obtained  for  the  plaintiff, 

Taddy  Serjt.  moved  to  set  it  aside  and  enter  a  nonsuit,  or  arrest  the 
judgment,  referring  to  Goldstein  v.  Foss,  4  Bing.  4S9;  Lord  Kerry  v. 
Thorley,  4  Taunt.  355. 

Best  C.  J.  Probably  the  declaration  might  have  been  more  accurate- 
ly drawn;  but  after  verdict,  the  question  is,  whether  enough  appears  on 
the  record  to  sustain  the  action?  It  is  not  easy  to  perceive  why  any  dis- 
tinction should  be  made  between  written  and  oral  slander;  but  the  case 
referred  to.  Lord  Kerry  v.  Thorley,  has  established  it  too  firmly  to  be 
shaken.  According  to  that  case,  in  order  to  support  an  action  lor  oial 
slander,  something  criminal  must  have  been  imputed;  but  in  a  libel  any 
tendency  to  bring  a  party  into  contempt  or  ridicule  is  actionable,  and,  in 
general,  any  charge  of  immoral  conduct,  although  in  matters  not  punisii- 
able  by  law.  Is  then  immoral  conduct  imputed  to  the  plaintiff  by  this 
libel?  (After  reading  this  libel  his  Lordship  proceeded:)  Maguire  is  re- 
presented as  having  said  that  the  plaintill  had  offered  W\n\  1000/.  and  a 
living  of  800/.  a  year  if  he  would  change  his  faith,  and  the  whole  state- 
ment concludes,  "all  these  facts  are  capable  of  proof,  and  will  be  prov- 
ed, if  their  authenticity  be  denied."  Among  these  facts  is  the  disgrace- 
ful employment  of  a  church  of  England  clergyman  to  tampor  wiih  the 
conscience  of  a  priest,  and  the  niisaj)plicaliun  of  church  of  England  jirc- 
ferment;  for  such  we  must  take  it  to  be,  as  the  archhishoj)  would  have  no 
other  in  his  gift.  Would  it  be  immoral  in  the  archbishop  if  he  attempt- 
ed to  bribe  a  man  to  renounce  his  religion,  and  to  eiulow  such  a  prose- 
lyte with  church  of  England  preferment  ?  Would  it  be  immoral  to  em- 
ploy, in  making  hyjjocrites,  funds  destined  to  the  support  of  the  Pro- 
testant Church?  if  the  sediice<l  be  guilty,  it  is  impossible  to  say  that 
the  seducer  is  innocent.  But  it  has  been  urged,  that  nothing  immoral  is 
imputed,  since  the  legislature  h.'is  held  out  to  C'athulic  jjrie.sts  the  same 
kind  of  temptation  to  become  Protestants.  I'^vcn  if  that  were  so,  it 
would  not  persuade  me  that  such  a  course  wos  moral.  lUit  the  legisla- 
ture has  not  done  this;  it  has  only  said,  that  if  a  man  be  converted  he 
shall  not  be  left  to  staryc  in  the  midst  of  a  hostile  community.  The  le- 
gislature has  provided  a  maintenance  for  him,  not  to  jjcrsuadc  him  to 
become  a  convert,  but  to  support  him  when  converted:  the  sum  allow- 
ed is  too  small  to  operate  as  a  temptation  to  insincerity.  We  collect, 
therefore,  from  this  record,  thai  there  is  a  charge  reflecting  on  the  moral 


352         AiiciiinsiKjr  or  Tuam  v.  Robeson.  T.  T.  1828, 

conduct  ol  the  archbishop;  a  cliargc  which,  if  true,  ought  to  exclude  hinr 
from  tlie  situation  which  he  lills.  But  wc  have  been  referred  to  the  case 
of  Goldstein  V.  Foss,  and  have  been  told  that  the  record  is  defective  in 
introductory  averments  to  suppoit  the  various  innuendoes.  However, 
neither  the  facts  nor  the  judgment  in  that  case  interfere  with  the  present 
decision.  There  the  declaration  alleged,  that  whereas  divers  persons 
had  been  associated  together  under  the  name  of  *'The  Society  of  Guar- 
dians for  the  Protection  of  Trade  against  Swindlers  and  Sharpers,"  and 
the  defendant  under  pretence  of  being  secretary  of  the  society,  iiad  from 
time  to  time,  published  printed  reports  for  the  purpose  of  announcing  to 
the  society  the  names  of  such  persons  as  were  deemed  swindlers  and 
sliarpcrs,  and  improper  persons  to  be  proposed  as  members  of  the  society; 
and  whereas  the  plaintiff  was  a  merchant  of  good  character;  yet  the  de- 
fendant falsely  and  maliciously  published  of  and  concerning  the  plaintiff, 
in  his  trade  and  business,  the  following  libel: — 

"Society  of  Guardians  for  the  protection  of  Trade  against  Swindlers 
and  Sharpers. — I,  E.  F.,  am  directed  to  inform  you  that  the  persons  using 
the  firm  of  Goldstein  (meaning  the  plaintiff)  are  reported  to  the  society 
as  improper  to  be  proposed  to  be  balloted  for  as  members  thereof;" 
thereby  meaning  that  the  plaintiff  was  a  swindler  and  a  sharper,  and  an 
improper  person  to  be  a  member  of  the  said  society:  and  it  was  held  that 
the  innuendo  could  not  be  supported  without  a  previous  averment  that 
it  was  the  custom  of  the  society  to  designate  swindlers  and  sharpers  by 
the  terms,  "improper  persons  to  be  members  of  that  society."  The 
libel  in  that  case  was  different  from  the  present  in  this  respect,  that  on 
the  face  of  it  there  was  no  imputation  of  immoral  conduct.  There  is 
quite  enough  in  the  language  here  to  constitute  this  a  libel  after  verdict. 
Park  J.  I  am  of  the  same  opinion.  Sufficient  is  stated  here'  to  ren- 
der this  a  libel  on  the  plaintiff.  The  paper  charges  an  archbishop, 
not  with  endeavouring  to  extend  the  Protestant  faith,  but  with  having 
selected  a  person  who  was  under  a  charge  of  seduction  for  the  ministry 
of  a  Protestant  church,  and  with  offering  to  reward  him,  not  for  a  sin-~ 
cere  conversion,  but  for  a  colourable  profession  of  conformity.  That  is 
the  gist  of  the  allegation,  and  that  is  a  libel.  An  innuendo  without  pre- 
vious explanation  will  not,  it  is  true,  make  that  a  libel  which  is  not 
otherwise  libellous;  but  the  imputation  of  immoral  conduct  is  sufficiently 
clear  on  the  present  record. 

BuRROUGH  J.  If  we  are  to  understand  the  language  of  this  attack  as 
the  rest  of  the  world  would  do,  there  can  be  no  doubt  it  is  a  gross  and 
infamous  libel.  The  plaintifl'  is  charged  with  having  sought  to  induce 
an  improper  person  to  abandon  his  religious  creed,  not  by  reasoning,  but 
by  a  gross  bribe.  The  libel  is  such  as  not  to  need  explanation,  and  the 
innuendoes  are  sufficient. 

Gaselee  J.  The  misconduct  laid  to  the  plaintiff's  charge  is,  the  hav- 
ing offered  to  a  Catholic  priest  1000/.  and  a  living  of  800/.  a  year,  to  be- 
come a  Protestant.  It  has  been  urged,  that  there  is  no  preliminary  al- 
legation sufficient  to  warrant  such  an  innuendo;  but  it  is  alleged  that  the 
defendant,  seeking  to  cause  it  to  be  believed  that  the  plaintiff,  as  arch- 
bishop, had  promised  Maguire  1000/.  and  a  living  of  800/.  a  year,  and 
had  written  to  a  Protestant  clergyman  to  make  such  offer  to  induce  Ma- 
guire to  become  a  Protestant,  published  of  and  concerning  the  conduct 
of  the  plaintifi,  and  of  and  concerning  the  plaintiff's  said  supposed  ofler, 
the  libel  following.     That  is  a  sufficient  allegation  of  the  offer  to  which 


5  Bingham,  17.  353 

Ihe  libel  refers;  lor  in  Rex  v.  Home,  Cowp.  672,  in  an  indiclment  for  a  li- 
bel on  thekine;and  his  troops,  it  was  held  a  sufficient  allegation,  that  the  libel 
was  published  of  and  concerning  the  king  and  his  troops.  The  jury  have 
found  that  this  was  published  of  and  concerning  the  plaintiff,  and  that 
gets  rid  of  the  objection  to  the  frame  of  the  declaration.  As  to  tho 
merits,  this  is  equally  a  libel,  whether  it  proposed  to  impute  to  the  plain- 
tiff indiscretion  or  dishonesty;  the  manifest  object  of  it  was  lo  bring  him 
into  disrepute.  It  charges  him,  also,  with  a  consciousness  of  incorrect 
conduct,  because  it  is  alleged  that  he  desired  his  letter  not  to  be  sliewn. 

Rule  refused. 


PREECEv.  CORRIE.— p.  24. 

Avowant,  who  had  a  term  which  expired  on  the  11th  of  November  1826,  let  the 

premises  orally  from  the  11th  of  September  to  the  llih  of  Novemberin  that 

year,  for  270/.,  payable  immediately: 
Held,  that  this  was  a  lease,  of  which  parol  evidence  might  be  given,  and  not  an 

assignment  requiring  a  writing;  but  that  being  a  demise  of  the  whole  of  avow- 

ant's  interest,  he  had  no  right  to  distrain. 

To  a  cognizance  by  the  defendant  for  rcnt-arrear  from  the  plaintiff,  ai 
tenant  to  Thomas  White,  under  a  demise  for  a  certain  term,  to  wit, 
from  the  11th  day  of  September  1826  till  the  11th  of  November  in  the 
the  same  year,  the  plaintiff  pleaded, 

P^irst,  that  he  did  not  hold  the  premises,  as  tenant  to  White,  by  vir- 
tue of  the  said  supposed  demise; 

Secondly,  that  by  the  said  supposed  demise.  White  denused  and  grant- 
ed the  premises  to  the  plaintiff,  for  all  the  residue  and  remainder  of  his, 
White's,  estate,  term,  and  interest  in  the  same,  and  that  he  had  not 
at  the  time  when,&c.,  or  at  any  time  during  the  supposed  demise  to  tha 
plaintiff,  any  reversionary  estate,  term,  or  interest  in  the  premises,  ex- 
pectant, or  to  take  effect,  upon  or  after  the  expiration  of  the  term  grant- 
ed to  the  plaintiff  by  the  supposed  demise. 

The  defendant  took  issue  on  tho  first  plea,  and  to  the  second  replied, 
that  White  did  not  demise  and  grant  the  premises  to  tho  plaintiff,  for  all 
the  residue  and  remainder  of  White's  estate,  term  and  interest  in  the 
same;  and  on  this  issue  was  joined. 

At  the  trial  before  Liltlcdnh  J.  Hereford  Summer  assizes,  1827,  it 
appeared,  that  White  had  a  term  in  the  preiniscs,  which  expired  on  the 
11th  of  November  1S26;  an<l  that  on  the  11th  of  September  in  that 
year,  in  the  completion  of  .some  arrangements  between  him  and  the 
plaintiff,  he  let  the  premises  orally  to  the  plaintiff,  to  hold  till  the  same 
11th  of  November,  paying  270/.  rent  immediately. 

The  jury  found,  first,  that  Wiiite  demised  to  the  plaintiff;  .secondly, 
that  White  parted  with  the  whole  of  his  term.  'I'he  latter  finding  negativ- 
ing m  effect  the  defendant's  right  to  distrain,  and  so  amounting  to  a  ver- 
dict for  the  plaintiff, 

Russell  Serjt.  moved  to  set  aside  the  verrlict  and  have  a  new  trial,  or 
enter  a  verdict  for  tlie  defendant,  on  the  ground  thnt  the  plaintiff's  plea 
of  non  fcnuit  had  been  found  in  favour  of  the  defendant;  and  that  no  ad- 
missible evidence  bad  been  adduced  in  support  of  the  second  plea,  which 
amounted  in  effect  to  an  allegation,  that  Thnnins  White  bad  assigned  all 
bis  interest   in   the   |tremise5,  and   such  an  as^ignnH•nf  rould  not,  under 

VOL.  XV.  45 


35-4  Se\ TUN  V.  Bknkdict.  T.  T.  1828. 

the  slatiito  of  frauds,  be  effected,  except  by  writing.  If  the  plea  did  not 
amount  to  an  allegation  of  assignment,  it  must  he  taken  to  shew  an  under- 
lease from  White  to  the  plaintifl";  and  in  that  case  ho  would  have  been 
entitled  to  distrain. 

A  rule  nisi  was  granted,  against  which  Ludlotv  Serjt.  was  to  have 
shewn  cause;  but  the  Court  called  on 

Russell  to  support  his  rule.  He  cited  Bac.  Abr.  Assignment;  2  Inst. 
483;  Bolting  v.  Martin,  1  Campb.  318;  Poultncy  v.  Holmes,  1  Str. 
405  ;  Smith  v.  Maplcback,  1  T.  R.  445  ;  Alchorne  v.  Gomme,  2 
Bingh.  54. 

Best  C.  J,  There  is  no  pretence  for  the  motion.  This  was  an  action 
of  replevin,  and  the  defendant  made  cognizance  as  bailiff  of  White, 
alleging  that  the  plaintiff  held  as  his  tenant  under  a  demise,  from  11th 
September  1826  to  11th  November  in  the  same  year,  at  a  rent  of  270/. 
To  this  there  were  two  pleas:  first,  non  tenuit;  secondly,  that  White, 
by  the  demise  mentioned  in  the  cognizance,  granted  the  premises  for 
the  whole  of  his  estate  in  them,  leaving  no  reversionary  interest  ex- 
pectant on  the  determination  of  the  term.  Upon  these  pleas  issue  was 
joined.  The  jury  found  for  the  defendant  upon  the  non  tenuit;  but  on 
the  last  plea  they  found  that  there  was  a  demise  of  White's  whole 
estate. 

Both  findings  are  proper.  At  first  sight  it  might  appear,  that,  con- 
sistently with  the  second  plea,  non  tenuit  ought  to  have  been  found  for 
the  plaintiff:  but  this  demise,  though  not  entitling  the  lessor  to  distrain, 
ought  to  be  considered  as  a  lease,  and  not  as  an  assignment;  and  in  Poult- 
net/  V.  Holmes  it  was  decided,  that  a  party  might  sue  in  debt  upon  such 
a  demise.  This  was  a  lease  in  fact,  though  even  if  it  had  been  an  assign- 
ment it  might  have  been  received  in  evidence;  for  it  would  have  been 
an  assignment  by  operation  of  law,  which  the  statute  of  frauds  does  not 
require  to  be  in  writing;  but  the  transaction  was  in  fact  a  lease,  and  the 
finding  of  the  jury  on  both  issues  was  proper.  If  the  plea  itself  is  bad 
the  defect  is  on  the  record,  and  the  parties  may  proceed  further;  but  on 
this  we  give  no  opinion.  My  brother  Park  {a]  concurs  as  to  the  cor- 
rectness of  the  finding.     The  rule  must  be  discharged. 

BuRROUGH  J.  was  of  the  same  opinion. 

Gaselee  J.  In  Smith  v.  Mapleback,  the  Court  held  that  the  lessor 
could  not  distrain  upon  a  demise  like  the  present,  though  it  was  held  to 
be  sufficiently  a  demise  to  entitle  him  to  sue  in  assumpsit  for  the  sum 
reserved. 

Rule  discharged. 
{a)  He  was  at  Chambers. 


SEATON  V.  BENEDICT.— p.  38. 

1.  Payment  of  money  into  court  upon  a  general  indebitatus  assumpsit  is  no  ad- 
mission of  a  contract  beyond  the  amount  of  the  sum  paid  in. 

2,  A  husband,  who  supplies  his  wife  with  necessaries  in  her  degree,  is  not  lialjle 
for  debts  contracted  by  her  without  his  previous  authority  or  subsequent  sanc- 
tion. 

Assumpsit  for  goods  sold  and  delivered.     The  defendant  pleaded  the 
general  issue,  except  as  to  10/.  which  he  tendered  and  paid  into  court. 
By  a  bill  of  particulars,  it  appeared  that  the  plaintiff's  demand  amounted 


5  Bingham,  28.  355 

to  28/.  5s.  6J.,  for  kid  gloves,  ribbands,  muslins,  lace,  silks,  and  silk  stock- 
ings, thirteen  pair  of  which,  of  a  very  expensive  description,  were 
charged  for,  as  having  been  delivered  on  one  day. 

At  the  trial  before  Bitrrough  J.,  Middlesex  sittings  after  Hilary  term 
last,  it  appeared  that  the  defendant,  a  gentleman  in  the  profession  of  the 
law,  was,  at  the  time  when  the  plaintilf  furnished  the  goods,  living  with 
his  wife  at  Twickenham,  and  had  supplied  her  wardrobe  well  with  all 
necessary  articles;  that  the  plaintiff,  a  tradesman  at  Richmond,  had, 
without  the  defendant's  knowledge,  furnished  the  defendant's  wife  with 
the  articles  for  which  this  action  was  brought,  the  greater  part  of  which 
were  delivered  to  her  in  the  plaintiff's  shop,  and  the  remainder  into  her 
own  hand  at  the  defendant's  door. 

It  did  not  appear  that  the  defendant  had  seen  her  wear  any  of 
them,  except,  perhaps,  the  gloves  and  some  of  the  silk  stockings,  the 
price  of  which  did  not  amount  to  10/. 

On  behalf  of  the  defendant  it  was  contended,  that  these  articles  were 
not  necessary  for  the  wife  of  a  person  in  his  degree;  that  no  actual  au- 
thority for  them  had  been  proved;  and  that  an  authority  could  not  be 
implied  for  the  purchase  of  any  thing  but  necessaries. 

The  learned  judge  told  the  jury  tiiat  he  should  have  been  of  this  opin- 
ion, but  for  the  plea  of  tender;  tiiat  plea  admitted  that  the  wife  had  au- 
thority to  purchase  some  of  the  articles;  and  as  it  was  not  stated  in  respect 
of  which  of  them  the  tender  had  been  made,  it  must  be  taken  to  apply 
to  all,  admitting  the  authority  to  purchase  them  all,  and  contesting  only 
the  price  at  which  they  were  charged. 

A  verdict,  therefore,  was  taken  for  the  plaintiff  for  IS/.  5s.  Gd.,  with 
leave  for  the  defendant  to  move  to  set  it  aside,  if  the  learned  Judge  should 
be  thought  to  have  given  an  effect  to  the  tender  which  it  ought  not  to 
have. 

Wilde  Serjt.  accordingly  obtained  a  rule  nisi  for  a  new  trial,  on  the 
ground  that  the  goods  furnished  were  not  necessaries,  and  that  no  au- 
thority could  be  implied  from  the  tender  except  an  authority  to  purchase 
goods  to  the  extent  of  10/. 

Tadihj  Serjt.  shewed  cause,  and  cited  Bennett  v.  Francis,  2  B.  &  P. 
550;  Muntd'^ve  v.  Benedict,  3  B.  &.  C.  G31 ;  Holt  v.  Bricn,  4  B.  &  A. 
252;  Barllcy  v.  GriJJin,  5  Taunt.  .350. 

JVildc  referred  to  Cox  v.  Parry,  I  T.  R.  -104;  Blacklmrne  v.  Schoales, 
2  Campb.  3H;  Etherins^tofi  v.  Parrot f,  1  Salk.  lis. 

Bkst  C.  J.  I  think  there  ought  to  be  a  new  trial  in  this  case.  The 
learned  Judge  left  the  point  correctly  to  the  jur)',  but  gave  too  much 
effect  to  the  payment  of  money  into  court.  Independently  of  this,  the 
defendant,  in  point  of  law,  was  entitled  to  a  verdict.  A  husband  i.s  only 
liable  for  debts  contracted  by  his  wife  on  the  assumption  that  she  acts 
as  his  agent.  If  he  omifs  to  furnish  her  with  necessaries  he  makes  her 
impliedly  his  agent  to  purchase  them.  If  he  supplies  her  jjropcrly,  she 
is  not  his  agent  for  the  jjurcbase  of  an  article,  unless  he  sees  her  wear  it 
without  disapprobation.  In  the  present  case  the  husband  furnished  his 
wife  wilh  all  necessary  apparel,  and  he  was  ignorant  that  she  dealt  with 
Ihc  plaintiff.  No  article  was  delivered  in  bis  presence,  nor  was  there 
distinct  proof  that  any  bad  been  worn.  If,  therefore,  money  had  not 
fjcen  paid  into  court,  the  defendant  was  clearly  entitled  to  a  verdict. 
What,  then,  is  the  cMect  of  that  payment  r  If  the  money  had  been  paid 
in  on  the  first  items  of  the  bi|l,  an  authority  to  contract  at  the  dato  of 


356       CuoFTS  V.  Stock  LEY.  T.  T.  1828. 

these  items  woiilJ  have  beon  acknowledged — an  authority  which  could 
not  aftervvarils  have  been  retracted  but  by  express  notice.  But  there  is 
no  evidence  to  shew  that  the  money  was  not  paid  in  on  the  last  items; 
and  if  so,  there  was  no  agency  for  the  first.  The  payment  into  court, 
therefore,  recognizes  no  agency  beyond  the  amount  of  10/.  And  if  so, 
there  is  no  pretence  for  supporting  this  verdict.  It  may  be  hard  on  a 
fashionable  milliner  tliat  she  is  precluded  from  supplying  a  lady  without 
previous  enquiry  into  her  authority.  The  Court,  however,  cannot  enter 
into  these  little  delicacies,  but  must  lay  down  a  rule  that  shall  protect 
the  husband  from  the  extravagance  of  his  wife. 

Gaselee  J. (a)  It  isdiflicult  to  lay  down  an  abstract  rule  with  respect 
to  the  liability  of  the  husband;  but  on  the  subject  of  the  payment  of 
money  into  court  I  entertain  no  doubt.  Payment  into  court  generally 
in  assumpsit  admits  nothing  beyond  the  amount  of  the  sum  paid  in. 
Where,  indeed,  there  is  a  special  contract,  the  payment  into  court  admits 
that  contract;  but  where,  as  in  the  common  indebitatus  assumpsit,  the 
demand  is  made  up  of  several  distinct  items,  the  payment  admits  no 
more  than  that  the  sum  paid  in  is  due. 

In  Coxv.  Barry,  Blackburiiv.  iSchoales,  and  Bennett  v.  Francis, 
the  claim  arose  on  a  single  transaction. 

On  these  grounds  it  seems  to  me  that  too  much  weight  was  attached 
to  the  circumstance  of  the  payment  into  court.  The  jury  were  probably 
embarrassed  by  it,  and  the  verdict  ought  not  to  stand. 

Rule  absolute. 

(a)  Park  J.  \\'as  at  the  Old  Bailey,  and  Burroxi^  J.  gave  no  opinion. 


CROFTS  V.  STOCKLEY  and  Another.— p.  32. 

If  it  appears  on  the  whole,  that  the  condition  of  a  bail-bond  is  to  appear  in  the 
Common  Pleas,  it  may  be  dcsQvibed  as  such  in  the  declaration,  although  the 
expression  on  the  bond  is,  "  toappear  before  our  lord  the  King  at  Westminster," 
instead  of,  "before  the  justices  of  our  lord  the  King." 

Debt  on  a  ball-bond  by  the  assignee  of  the  sheriff.  The  declaration, 
after  alleging  that  the  plaintiff  had  sued  out  of  the  court  of  our  lord  the 
now  King,  before  Sir  fV.  D.  Best,  knight,  and  his  companions,  then 
his  Majesty's  justices  of  the  Bench  at  Westminster,  a  certain  writ  by 
which  our  said  lord  the  King  commanded  the  sheriff  that  he  should  take 
AV'illiam  Wright,  if  found  in  his  bailiwick,  and  safely  keep  him,  so  that 
he  might  have  his  body  before  the  justices  of  our  said  lord  the  King  at 
Westminster  on  the  morrow^of  AH  Souls  then  next,  to  answer,  &c.  and 
after  averring  the  indorsementof  the  writ  for  bail,  the  caption  of  Wright, 
and  the  taking  the  bail-bond  for  his  appearance,  stated  the  condition  of 
bond  to  be  that  Wright  should  appear,  according  to  the  exigency  of  the 
said  writ,  in  the  said  court  on  the  morrow  of  All  Souls,  to  answer  the 
plaintiff  in  a  plr«a  of  trespass,  and  also  to  answer  him  according  to  the 
custom  of  his  said  Majesty's  Court  of  Common  Bench  in  a  certain  plea 
of  debt. 

At  the  trial  before  Park  J.  Middlesex  sittings  after  last  Hilary  term, 
the  condition  of  the  bond  appeared  to  be  for  Wright  to  appear  before  our 
said  sovereign  lord  the  Kin^  at  Westminster,  on  the  morrow  of  All 
Souls,   to  answer  the  plaintiff  in  a  plea  of  trespass,  and  also  to  answer 


5  Bingham,  32.  357 

him  according  to  the  custom  of  the  King's  Court  of  Common  Pleas,  in  a 
certain  plea  of  debt. 

A  verdict  having  been  found  for  the  plaintiff,  notwithstanding  it  was 
objected  that  there  was  a  material  variance  between  the  condition  of  the 
bond  given  in  evidence  and  that  set  out  in  the  declaration, 

Liidloiv  Serjt.  obtained  a  rule  nisi  to  enter  a  nonsuit  on  the  ground  of 
this  variance.  In  Renalds  v.  Smith,  (J  Taunt,  551,  it  was  holden  that 
a  condition  to  appear  before  the  King  at  Westminster  was  a  condition  to 
appear  in  the  Court  of  King's  Bench. 

Mereivether  Serjt.  shewed  cause.  Coupling  the  ac  etiam  clause  with 
what  precedes,  it  is  sufficiently  plain  that  the  condition  of  the  bond  is  to 
appear  in  the  Court  of  Common  Pleas,  as  alleged  in  the  declaration. 

Ludlow.  If  the  pleader  had  set  out  the  bond  truly  the  declaration 
would  have  been  demurrable,  and  he  ought  not  to  escape  the  conse- 
quences of  a  demurrer  by  a  palpable  mis-statement. 

Best  C.  J.  In  Renalds  v.  Smith,  Gibbs  C.  J.  says,  "Taking  the 
whole  record  together,  I  cannot  doubt  that  the  bail-bond  points  out  the 
Court  of  King's  Bench,"  I  cannot  doubt  here  that,  taking  the  whole  of 
it  together,  the  bail-bond  points  out  the  Court  of  Common  Pleas,  and  that 
the  statement  in  the  declaration  corresponds  in  substance  with  it.  The 
rule  must  be 

Discharged, 


LEES  v.  WHITCOMB.(a)— p.  34. 

A  written  agreement,  "  to  remain  with  A,  B,  two  years  for  the  purpose  of  learning 
atrade,"  is  not  binding,  for  Avant  of  an  engagement  in  the  same  instrument  by 
A.  B.  to  teach. 

Assumpsit.  The  plaintiff  declared,  in  the  fourth  count  of  his  declara- 
tion, that  in  consideration  the  plaintifl",  at  the  special  instance  and  request 
of  the  defendant,  would  receive  the  defendant  into  his  service,  and  cause 
her  to  be  taught  the  trade  and  business  of  a  dress-maker  and  milliner  by 
the  wife  of  the  plaintiff,  the  defendant  agreed  and  undertookand  faithfully 
promised  the  plaintiff  to  continue  witli  the  wife  of  the  plaintiff  for  two 
years,  from  the  5th  of  June  1826,  for  the  purpose  of  learning  the  busi- 
ne.«. 

Averment  of  the  defendant's  reception  and  instruction  by  the  plain- 
tiff's wife,  and  of  her  staying  in  his  service  till  April  14th  1S27.  IJrcach, 
her  refusal  to  remain  in  liis  service  for  the  remainder  of  the  period  of 
two  years. 

In  the  fifth  count  the  consideration  was  stated  to  be  simply  the  re- 
ceiving the  defendant  into  his  service,  and  the  undertaking,  to  serve. 

There  were  other  counts;  but  these  came  nearest  to  the  agreement 
between  the  parties,  and  were  the  otrly  ones  relied  on.  Plea,  non- 
assumpsit. 

At  the  trial  before  Park  ^.,  Middlesex  sittings  after  Hilary  term,  the 
plaintiff,  in  support  of  his  action,  gave  in  evidence  the  following  agree- 
ment, signed  by  the  defendant: — 

<<  I  hereby  agree  to  remain  with  Mrs.  Lees,  of  30:^,  Regent  direct,  for 

{a)  Communicated  to  the  editor  by  a  gentleman  at  the  bar. 


358  Lees  v.  Wiin  comb.  T.  T.  1828. 

two  years  from  the  date  hereof,  for  the  purpose  of  learning  the  business 
of  a  dress-maker.     As  witness  my  hand  this  5lh  day  of  June  1826. 

"Amelia  Whitcomb." 

No  premium  was  paid  by  the  defendant,  who,  on  the  day  mentioned 
in  the  agreement,  entered  the  plaintiff's  house,  and  left  him  in  April  fol- 
lowing, by  which  time  she  had  made  such  progress  in  learning  the  busi- 
ness tliat  iier  services  were  l)ecoming  valuable  to  the  plaintiff.  It  ap- 
peared that  dress-making  and  millinery  Avere  two  distinct  businesses. 

On  the  part  of  the  defendant  it  was  objected,  that  there  was  no  mutu- 
ality in  the  above  agreement,  and  that,  therefore,  it  was  not  binding  on 
the  defendant;  that  the  plaintiff  not  having  bound  himself  to  teach,  al- 
though the  defendant  had  agreed  to  remain  and  learn,  there  was  an  en- 
tire absence  of  consideration  for  the  defendant's  agreement;  and  that  the 
agreement  given  in  evidence  did  not  correspond  with  that  set  out  in  the 
declaration.  The  plaintiff  was  thereupon  nonsuited,  with  leave  to  move 
to  set  aside  the  nonsuit,  and  have  a  new  trial. 

Taddy  Serjt.  moved  accordingly,  and  a  rule  nisi  having  been  granted, 

Wilde  Serjt.  shewed  cause. 

The  fifth  count  is  not  supported  by  the  evidence,  because  a  contract  to 
serve  is  very  different  from  a  contract  to  learn.  And  there  is  no  con- 
sideration on  the  face  of  the  agreement  to  support  the  fourth,  as  there 
ought  to  be  under  the  statute  of  frauds.  Wain  v.  fVarlters,  5  East,  10. 
Saunders  v.  JVakefield,  4  B.  &  A.  5.95.  Jenkins  v.  Reyiwlds,  3  B.  & 
B.  14.  The  plaintiff  does  not  bind  himself  to  teach,  nor  is  the  agreement 
even  signed  by  him  as  a  party  to  be  charged. 

The  Court  here  called  on 

Taddy,  who  cited  Rex  v.  Lynn,  6  B.  &  C.  97;  Egerton  v.  Matthews, 
6  East,  306. 

Best  C.  J.  I  am  opinion  that  none  of  the  counts  are  proved.  The 
contract  does  not  bear  the  meaning  which  is  put  upon  it  in  the  declara- 
tion. The  businesses  of  milliner  and  dress-maker  are  very  different,  and 
that  disposes  of  the  fourth  count.  The  fifth  count  alleges  the  considera- 
tion to  be  the  plaintiff's  receiving  the  defendant  into  his  service,  and  the 
undertaking,  an  engagement  to  serve;  but  there  is  by  the  contract  no  ob- 
ligation on  the  defendant  to  serve;  her  engagement  is  merely  to  remain 
for  two  years,  and  the  plaintiff  could  not  have  compelled  her  to  serve. 
It  was  probably  the  plaintiff's  intention  to  prevent  the  defendant  from 
leaving  him  and  setting  up  for  herself  the  moment  she  had  learned  his 
business,  and  there  might  have  been  a  sufficient  consideration  for  that  if 
he  had  undertaken  to  teach;  but  there  is  nothing  in  the  agreement  to  in- 
sure such  instruction  to  the  defendant. 

BuRRouGH  J.  There  is  no  consideration  expressed  in  the  agreement 
for  the  defendant's  undertaking;  and  since  the  case  of  Wain  v.  Warltcrs 
that  is  indispensable. 

Gaselee  J.  The  service  in  the  fifth  count  is  alleged  generally,  and 
not  as  a  service  for  the  purpose  of  learning.  I  feel  some  difficulty,  but 
not  sufficient  to  render  it  necessary  for  me  to  differ  from  the  rest  of  the 
Court. 

Rule  discharged. 


HILLS  v.  STREET.— p.  37. 
A  tenant  distrained  on  for  rent  requested  the  broker  not  to  proceed  to  sale,  and 


5  Bingham,  37.  359 

engaged,  in  consideration  of  forbearance,  to  pay  the  broker's  charges.  Time 
was  given  and  the  charges  paid,  but  the  tenant  objected  to  the  amount  of  them, 
and  to  the  amount  of  rent  demanded:  Held,  that  this  was  not  a  voluntary  pay- 
ment, and  that  the  charges,  if  irregular,  might  be  recovered  back  in  an  action 
for  money  had  and  received. 

Assumpsit  for  money  had  and  received  by  the  defendant  to  the  use 
of  the  plaintifl".  At  the  trial  before  Gaselee  J.,  Middlesex  sittings  after 
Michaelmas  term  last,  it  appeared  that  the  defendant,  as  broker  for  H. 
Elwes,  had  on  the  2Sth  of  April  1827  distrained  on  theplaintiflf  for  230/. 
10,5.,  alleged  to  be  due  to  Ehves  for  seven  quarters'  rent. 

The  defendant,  upon  written  requests  made  by  the  plaintiff  from  time 
to  time,  and  on  condition  of  his  paying  the  charges  for  distraining,  for- 
bore to  remove  or  sell  the  goods  distrained,  the  plaintiff  engaging  to  pay 
the  expence  of  keeping  a  man  in  possession.  Accordingly  the  rent  not 
having  been  satisfied,  the  plaintiff,  upon  the  defendant's  instances,  paid 
him  on  the  ISth  of  May  Si.  5s.  as  broker's  commission  on  a  distress  for 
230/.  105.  (at  the  rate  of  5/.  for  the  first  hundred,  and  2/.  10*.  for  every 
hundred  over,)  4/.  4*.  for  the  expences  of  a  man  in  possession  twenty-one 
days,  and  IZ.  for  drawing  the  form  of  the  above-mentioned  requests.  On 
the  11th  of  June  he  again  paid  the  defendant  for  the  expences  of  the  man 
in  possession  twenty-four  days  4/.  4s.,  and  for  drawing  four  more  re- 
quests 1/.,  making  altogether  19/.  5s.  which  the  plaintiff  now  sought  to 
recover,  as  having  been  illegally  demanded  and  paid. 

The  man  in  possession  having  on  the  23d  of  June  quitted  the  house 
for  the  purpose  of  procuring  a  van  to  remove  the  goods  distrained,  the 
plaintiff  refused  to  let  him  in  again.  In  consequence  of  this  a  second 
distress  was  made  on  the  16th  of  July,  when  the  plaintiff  replevied. 

Early  in  the  transaction  the  plaintiff  had  alleged  thatonl}-  six  quarters' 
rent  were  due,  but  it  did  not  distinctly  appear  at  the  trial  whether  be- 
fore or  at  the  time  of  the  payments  made  to  the  defendant  the  plaintiff  had 
expressed  any  intention  to  replevy.  It  appeared,  however,  that  he  had 
objected  to  the  amount  of  the  defendant's  charge,  when  the  defendant  said 
"The  law  allowed  it,  and  he  would  have  it." 

For  the  defendant  it  was  contended,  that  the  charge  for  making  the 
distress  was  reasonable  and  legal,  and  that  whether  the  clinrgc  for  keep- 
ing the  man  in  possession  were  legal  or  not,  yet  that  having  been  incur- 
red at  the  express  rofpicst  of  the  plainliff  for  his  sole  accommodation,  and 
having  been  paid  voliintarily  wit!)  a  full  knowledge  of  all  the  facts,  it  could 
not  now  be  recovered  at  the  hands  of  the  defendant.  JirisbiDtc  v.  Dacres, 
5  Taunt.  143. 

The  learned  Judge  thought,  that  as  the  distress,  in  respect  of  which  the 
charges  were  made,  had  never  been  brought  to  a  conclusion,  the  goods 
not  having  been  sold,  but  having  actually  been  replevied  under  a  subse- 
quent flisfress,  it  was  doubtful  whether  the  charge  for  distraining  could 
be  sustained,  (the  slat,  51  (i.  3.  c.  93.  s,  G.  applying  only  to  cases  where 
the  goods  distrained  are  sold,)  ^ind  whether  the  payment  could  be  es- 
teemed voluntary;  which  he  told  the  jury  it  could  not,  if  at  the  time  it 
was  made  the  plaintiff  intended  to  replevy. 

Whereupon  a  verdict  was  found  for  the  plaintiff  for  51.  \Qs.  on  the 
sum  paid  for  making  the  distress,  with  leave  for  the  defendant  to  move 
to  set  it  aside  and  enter  a  nonsuit  instead.      Accordingly 

JVilde  Serjt.  in  Hilary  term  last  obtained  a  rule  nisi  to  that  effect ; 
against  which 


:i60  (ii'LLY  V.  HisHop  orExiiTER.  'r.  T.  1828. 

Andrews  Serjt.  was  to  have  slicwn  cause;  but  the  Court  called  on 
ll'ihle  to  support  his  rule,  who  referred  to  Lindon  v.  Hooper,  Cowp. 
■114;  Knihbs  v.  Hall,  1  Esp.  N.  P.  C.  84;    Fxilham  v.  Down,  6  Esp. 

Bkst  C.  J.  Althougli  under  the  circumstances  of  this  case  I  would  al- 
low for  the  legal  expences  of  making  theilistress  and  inventory,  yet  this 
rule  must  be  discharged;  for  that  allowance  could  not  be  sufficient  to  turn 
the  scale  in  the  defendant's  favour,  the  prothonotary  stating  to  us,  that 
on  taxation  of  costs  the  broker's  charge  for  distraining  would  not  be  per- 
mitted to  exceed  one  guinea. 

But  I  am  clearly  of  opinion  that  this  was  not  a  voluntary  payment. 
The  broker  is  in  possession  of  goods  distrained  for  rent.  The  party  dis- 
trained on  is  anxious  that  the  goods  should  not  be  sold,  and  that  time 
may  be'allowcd  him  to  pay  the  rent.  The  broker  requires,  as  a  condi- 
tion of  the  indulgence,  that  he  shall  be  furnished  with  a  written  request 
not  to  sell,  and  an  undertaking  to  pay  the  expences;  this  is  given  and  en- 
forced, but  it  is  clear  that  it  is  given  under  an  apprehension  the  sale 
would' proceed  unless  the  demand  were  complied  with;  and  it  is  impos- 
sible to  call  a  payment  under  such  circumstances,  voluntary.  If  the 
payment  were  not  voluntary,  the  plaintiff  is  entitled  to  recover  back  all 
that  was  paid  improperly,  which  exceeds  in  amount  the  verdict  he  has 
obtained.  Lindon  v.  Hooper  only  decides  that  an  action  for  money  had 
and  received  does  not  lie  to  recover  back  money  paid  for  the  release  of 
cattle  damage  feasant,  though  the  distress  were  wrongful;  replevin  or 
trespass  being  the  proper  form  of  action  to  try  such  a  question.  But  the 
present  question  could  not  have  been  tried  in  replevin.  There  is  no 
form  of  action  but  assumpsit  for  money  had  and  received,  in  which  a 
party  can  recover  money  paid,  as  this  was,  under  duress. 

Gaselee  J.  The  broker  is  the  agent  of  the  landlord,  and  must  look 
to  him  for  these  expenses.  But  the  broker,  acting  as  a  public  officer, 
has  no  right  to  charge  for  giving  time. 

The  rest  of  the  Court  concurred,  and  the  rule  was 

Discharged. 


GULLY  and  Others  v.  The  Bishop  of  EXETER  and  DOWLING. 

p.  42. 

Where  the  plaintiff's  title  to  an  advowson  was  traced  in  quare  imfiedil  through 
a  period  of  two  centuries,  and  the  defendant's  claim  arose  on  the  alleged  inva- 
lidity of  a  deed  of  1672,  the  Oourt  would  not  allow  him  to  traverse  all  the  alle- 
gations in  the  declaration,  or  to  plead  more  pleas  than  were  necessary  to  contest 
the  deed  of  1672. 

In  this  case,  (see  ante,  page  68,)  the  plaintifl  in  quare  impedit 
having  been  obliged  to  trace  his  title  through  a  period  of  two  centuries, 
and  the  defendant  having  in  forty'thrce  pleas  traversed  every  allegation 
in  the  declaration,  although  the  plaintiff's  claim  rested  solely  on  the  va- 
lidity of  a  deed  of  1G72,  which  tlie  defendant  sought  to  invalidate  by 
setting  up  a  subsequent  deed  of  16.92,  the  Court  rescinded  the  rule  to 
plead  several  matters,  as  having  been  made  an  improper  use  of. 

E.  Lowes  Serjt.   thereupon  obtained  a   new  rule  nisi,   to  plead  the 
several  matters  following:  — 


5  Bingham,  42.  361 

1.  That  the  deed  ot'  the  29th  of  April  1012  was  fraudulent  and  void 
as  against  subsequent  purchasers. 

2.  I\on  concessit  as  to  that  deed, 

3.  Issue  on  descent  from  Lewis  Stephens  to  J.  Stevens. 

4.  Non  concessit  as  to  the  deed  of  the  5th  January  1699. 

5.  Non  devisavit  as  to  the  will  of  J.  Stevens. 

6.  Non  concesserunt  as  to  the  deed  of  the  20th  December  1719. 

7.  Nul  tiel  record  of  the  fine  of  Hilary  term,  6  G.  4. 

8.  That  it  was  not  levied  to  the  uses  stated. 

9.  Nul  tiel  record  oi  \.\\Q  recovery  of  Easter  term,  6  G.  1. 

10.  Riens  passu  as  to  the  bargain,  sale,  and  release  of  the  10th  and 
11th  November  1731. 

11.  No7i  devisavit  as  to  the  will  of  John  Davie. 

12.  Riens  passa  as  to  the  lease  and  release  of  the  23d  and  2  4th  April 
1777. 

13.  Issue  on  the  descent  from  John  Davie  to  Joseph  Davie. 

14.  Non  concessit  as  to  the  grant  of  the  next  turn  by  Josej)h  Davie 
to  William  Slade  Gully. 

15.  Non  devisavit  as  to  the  devise  thereof  by  William  Slade  Gully 
to  the  plaintiff. 

IG.  The  defendant's  title;  against  which 

Wilde  Serjt.  now  shewed  cause,  and  objected,  as  before,  that  all  the 
pleas  except  those  which  disputed  the  validity  of  the  deed  of  1672,  and 
asserted  the  validity  of  the  deed  of  1692,  were  an  abuse  of  the  rule  to 
plead  several  malters,  being  calculated  only  to  put  the  parties  to  a  great 
expense,  and  wholly  immaterial  to  the  merits  of  the  cause,  so  that  if  the 
defendant  succeeded  on  them  he  would  gain  nothing. 

E.  Lawes.  Unless  the  defendant  be  permitted  to  traverse  the  alle- 
gations in  the  plaintiff's  declaration,  it  is  useless  to  require  the  plaintiff 
to  make  them.  It  has  always  been  the  practice  of  the  Court  to  permit 
the  defendant  to  take  issue  on  every  matter  of  fact  advanced  by  the 
plaintiff,  and  to  hold  him,  like  the  prosecutor  in  criminal  proceedings, 
to  the  strict  proof  of  his  lillc.  But  without  resorting  to  the  discretion 
of  the  Court  under  the  statute  of  Ann,  a  defendant  may  at  common  law, 
if  he  confines  himself  to  one  point  in  the  j^IaintifT's  case,  employ  seve- 
ral pleas  to  meet  that  point.  In  the  plainliir's  case  here  are  two  points: 
1.  the  allegation  of  his  title;  2.  the  disturbance  by  the  defendants:  but 
the  disturbance  being  admitted,  the  defendants  may  apply  themselves 
exclusively  to  the  title,  and  if  that  title  consists  of  an  allegation  of  inany 
facts,  may  traverse  them  all.  In  Roiulcs  v.  Lnsty,  4  Hing.  428,  which 
was  a  writ  of  entry  for  abatement  of  divers  messuages  and  mill.««,  a  plea 
that  R.  S.  devised  them  to  T.,  who  devised  them  to  S.,  wife  of  K.  I>. 
C. ,  who  levied  a  fine  to  the  tenant,  was  held  not  double;  and  the  (Jourt 
said,  **  No  matters,  however  multifarious,  will  operate  to  make  a  plead- 
ing double,  provided  that  all  tnken  together  eonslilule  but  one  con- 
nected proposition  or  entire  point."  *'  Duplicity  is  wlieii  two  distinct 
matters,  not  being  part  of  one  entire  dcifemc,  arc  atlenipled  to  be  pnt 
in  issue,  lint  this  can  never  apply  to,  nor  does  it  preclude  a  party 
from  introducing  several  matters  into  a  plea,  if  they  arc  constituent  parts 
of  the  same  defence;  for  though  it  be  true  that  issue  must  be  taken  on  a 
single  point,  yet  it  is  not  necessary,  nor  ever  can  be,  that  surh  single 
point  must  consist  only  of  one  single  fact."  In  the  case  of  Uohinsoji  v. 
Ray  ley,  1  Burr.  316,  to  an  action  of  trespass  defendant  had  pleaded, 

VOL.  XV.  46 


'M^j,        (ii  i.i.v  r. '1'he  Hisiioi'  of  Exkter.  T.  T.  1828. 

amoiicst  other  things,  a  riglit  ol"  common.  Plaintifl  in  his  replication 
traversed,  tliat  the  cattle  were  the  defendant's  own  cattle,  that  they 
were  levant  and  couchant,  and  that  they  were  cornynonablc  cattle.  To 
this  there  was  a  special  demurrer,  *'that  the  replication  is  multifarious, 
and  that  several  matters  (specifying  them)  arc  put  in  issue,  whereas  only 
one  single  matter  ought  to  be  so."  Lord  Mansfield  said,  *'  As  to  the 
present  case,  it  is  true  you  must  take  issue  upon  a  single  point,  but  it  is 
not  necessary  that  this  single  point  should  consist  only  of  a  single  fact. 
Here  the  point  is  the  cattle  being  entitled  to  common:  this  is  a  single 
point  of  the  defence.  But  in  fact  they  must  be  both  his  own  cattle  and 
c>lso  levant  and  couchant,  which  are  two  difierent  essential  circum- 
stances of  their  being  entitled  to  common,  and  both  of  them  absolutely 
requisite." 

Best  C.  J.  I  am  glad  this  question  has  been  fully  brought  before 
the  Court;  for  though  merely  a  matter  of  practice,  it  is  a  point  of  great 
importance.  On  the  decision  of  this  question  it  depends,  whether  suits 
shall  be  carried  on  at  great  and  unnecessary  expense,  or  whether  the 
real  object  of  pleading  shall  be  attained,  that  of  reducing  causes  to  a  sin- 
gle point  to  be  tried. 

At  common  law  a  defendant  was  permitted  to  plead  one  plea  only, 
and  it  was  a  principle  that  pleadings  ought  to  be  true.  That  can  rarely 
be  the  case  when  many  pleas  are  pleaded.  But  as  it  was  sometimes' 
found  difficult  to  comprise  the  merits  of  a  defence  in  a  single  plea,  the 
statute  of  Ann  permitted  a  party  to  plead  as  many  as  might  be  necessary 
to  his  defence,  provided  he  obtained  leave  of  the  Court;  thereby  con- 
fining him  to  such  as  might  be  deemed,  in  the  discretion  of  the  Court, 
essential  to  the  justice  of  his  cause.  We  have  enough  of  the  merits  of 
this  cause  before  us  to  see  what  justice  requires.  The  living  in  dispute 
was  conveyed  by  a  deed  of  1672;  the  defendant  claims  under  a  deed  of 
1692,  under  such  circumstances,  that  if  the  deed  of  1672  is  valid,  the 
defendant  can  have  no  interest  in  the  property.  The  justice  of  the  case, 
therefore,  requires  that  the  defendant  should  plead  nothing  that  does  not 
tend  to  shew  the  invalidity  of  the  deed  of  1672.  He,  however,  insists 
on  going  into  matters  long  subsequent  even  to  the  deed  of  1692.  But 
if  his  right  accrues  from  that  deed,  what  can  he  have  to  do  vv'ith  the  sub- 
sequent matters? 

It  has  been  urged  that  it  is  in  vain  to  require  the  plaintiff  to  make 
certain  allegations,  if  the  defendant  may  not  deny  them.  But  the  ob- 
ject of  pleading  would  be  defeated,  as  it  is  already  in  some  actions,  if 
the  defendant  were  to  put  the  plaintiff  upon  tracing  his  whole  title.  The 
object  of  pleading  is  to  narrow  the  matter  in  dispute  to  a  single  point, 
and  a  defendant  ought  not  to  be  permitted  to  traverse  a  series  of  facts 
wholly  immaterial  to  his  own  claim.  Here  he  ought  to  break  in  on  the 
plaintiff's  title  but  once;  that  is,  to  dispute  the  validity  of  the  deed  of 
1672:  he  may  find  it  advisable  to  do  liiat  in  more  ways  than  one,  and, 
therefore,  he  may  add  the  pica  of  non  concessit,  but  he  shall  only  dis- 
pute the  plaintifl 's  title  in  the  point  material  to  him.  The  practice  in 
criminal  proceedings,  which  lias  been  alluded  to,  bears  no  analogy  to  the 
present  (jucstion.  The  humanity  of  our  law  allows  the  prisoner  to  put 
the  prosecutor  upon  proving  his  case  in  every  particular;  but  in  civil 
proceeding  the  interest  of  both  parties  requires  that  they  should  be  put 
to  as  little  expense  as  possible.  Perhaps  we  may  not  be  able  to  return 
to  the  ancient  sim[ilicity  of  pleading;   but  we  must  approach  it  as  nearly 


5  Bingham,  42.  363 

as  we  can,  and  remove,  if  it  be  possible,  tliat  reproach  which  iias  lately 
been  so  justly  cast  on  the  administration  of  justice.  It  is  an  important 
duty  of  the  Court  to  exercise  its  discretion  as  to  pleas,  and  to  render 
justice  as  cheap  and  as  expeditious  as  possible. 

Park  J.  concurred. 

BuRROUGH  J.  I  am  happy  at  this  opportunity  of  giving  a  death-blow 
to  a  practice  which  has  improperly  prevailed  for  many  years,  and  wiiich 
I  have  long  discountenanced. 

If  in  this  case  the  deed  of  1G72  be  set  aside,  all  the  other  issues  fall  to 
the  ground.  As  to  the  practice  of  the  Court,  it  cannot  repeal  the  statute 
of  Ann,  and  by  that  statute  we  are  bound  to  exercise  a  discretion  in  the 
permission  we  grant  to  parties  to  plead  several  matters.  It  has  been 
urged  that  all  the  issues  proposed  form  but  one  point  of  the  defence;  if 
that  were  so,  they  might  all  be  combined  in  a  single  plea.  But  they 
raise  a  great  number  of  points  wholly  unconnected  with  the  defendant's 
claim,  and  do  not  in  any  respect  resemble  those  matters  which  are 
usually  combined  in  a  single  plea,  and  make  in  effect  but  one  alle- 
gation; as,  for  instance,  that  cattle  are  commonable,  and  levant  and 
couchant. 

Gaselee  J.  Tlie  statute  of  Ann  would  never  have  been  passed  if 
such  abuses  had  been  anticipated  as  have  taken  place.  The  existing 
practice  has  given  a  defendant  a  most  inconvenient  advantage  over  a 
plaintiff.  Before  the  passing  of  the  statute  of  Ann  a  party  might  have 
two  or  three  substantial  defences  to  an  action,  and  yet  could  only  bring 
forward  one.  The  statute  has  enabled  him,  where  he  has  more  than  one, 
to  plead  it,  with  the  permission  of  the  Court.  Has  he  more  than  one 
in  the  present  case?  He  may  endeavour  to  perplex  the  plaintiff,  but  his 
only  defence  rests  on  the  alleged  invalidity  of  the  deed  of  1672.  It  has 
been  urged,  that  he  must  refer  to  the  other  deeds  to  throw  light  on  that; 
but  he  may  do  so  in  the  way  of  evidence,  and  produce  any  documents 
which,  in  his  opinion,  tend  to  shew  tiiat  the  deed  of  1G72  is  fraudulent. 
What  is  now  asked  at  our  hands  is,  not  to  allow  an  additional  ground  of 
defence,  but  to  throw  dillicullies  in  the  way  of  the  plaintiff.  It  is  the 
more  necessary,  too,  fur  us  to  be  cautious,  l)ecause,  if  the  plaintiff  be 
tripped  up,  it  is  ;i  matter  of  doubt  whether  the  defendant  might  not  be 
entitled  to  a  writ  to  the  Bishop  upon  a  mere  fabricated  title;  but  on  that 
I  give  no  opinion. 

It  has  been  argued,  that  as  the  plaintiff  brings  the  defendant  into 
(Jourt,  the  plaintifl'  ought  to  stand  the  shock  of  all  attacks  on  his  title  ; 
but  the  defendant  here  has  never  been  in  possession,  and  it  is  he  in  fact 
who  brings  the  plaintiff  into  Court,  by  entering  a  caveat  with  the  bishop. 
The  allegation  that  tiic  several  facts  which  it  is  proposed  to  dispute  con- 
stitute but  one  point  is  far  from  being  correct;  and  the  case  of  Ji'owles 
v.  Lxisly  Ii;i3  no  np[)Iication  to  the  present,  because  the  several  convey- 
ances mentioned  in  the  |)lea  in  that  casu  formed  but  one  assurance. 

The  true  principle  of  pleading  several  matters  is,  that  if  the  justice  of 
the  case  rer|uires  that  a  party  should  allege  several  defences,  the  Court 
will  not  prevent  it;  but  they  will  not  allow  a  party  to  plead,  merely  for 
the  purpose  of  throwing  difficulties  in  the  way  of  his  opponent.  In  the 
present  case  there  is  nothing  essential  to  tlu'.  defendant's  case,  but  to 
contest  the  validity  of  the  deed  of  IG72.  The  defendant,  therefore, 
shall  be  put  to  elect  which  link  of  the  plaintiff'ti  title  he  will  contest , 


364  CnoLMF.LEY  V.  Paxton.  T.  T.  1828. 

and  if  he   contests  the  deed  of  IGTxJ,  he  may  plead  non  concessit,  and 
that  the  ilccd  was  fraudulent. 

Rule  discharged  as  to  the  other  matters. 


CHOLMELEY  v.  PAXTON  and  Others.— p.  48. 

1.  Where  money,  which  uiuier  a  power  in  a  will  was  directed  to  be  raised  by 
the  sale  of  an  estate,  and  to  be  invested  by  trustees  with  the  consent  by  deed 
of  the  party  interested,  was  invested  partly  in  1783,  without  any  such  consent 
by  deed,  and  paitly  in  1806,  by  the  person  interested  himself,  the  trustee  hav- 
ing become  non  compos,  and  an  act  of  parliament,  reciting  these  investments, 
appointed  a  new  trustee.  Held,  that  neither  the  act  nor  the  lapse  of  time  cured 
the  defective  execution  of  the  power,  as  against  a  writ  of  formedon. 

2.  The  issue  was,  whether  the  money  had  been  invested  with  the  consent  of  the 
cestui  que  trust,  accordhig  to  the  directions  of  this  will :  Held,  that  it  was  cor- 
rect to  direct  the  jury  to  consider,  whether  it  had  been  invested  with  the  con- 
sent of  the  cestui  que  trust  manifested  by  deed. 

Formedon.  The  demandant  claimed  under  the  will  of  Sir  Henry 
Englefield,  who  devised  the  property  in  question  to  the  use  of  trustees 
in  trust  for  his  son,  Henry  Charles,  for  life,  without  impeachment  of 
waste;  remainder  to  the  first  and  other  sons  of  Henry  Charles  in  tail 
male;  remainder  to  his  son  Francis  Michael  for  life  without  impeach- 
ment, &c.  with  like  remainder  to  his  sons  in  tail  male;  remainder  to 
devisor's  daughter,  Theresa  Ann,  for  life,  without  impeachment  of 
waste;  remainder  to  her  first  and  other  sons  in  tail  male. 

The  devisor's  son,  Henry  Charles,  took  possession  of  the  property, 
and  died  without  issue,  as  did  Francis  JNIichacl;  and  the  devisor's  daugh- 
ter married  Francis  Cholmeley  the  father,  by  whom  she  had  issue,  the 
present  demandant,  who,  upon  her  death,  commenced  the  present  suit. 

The  defendants,  after  taking  issue  on  most  of  the  allegations  of  fact 
in  the  declaration,  pleaded  eiglithly  and  ninthly. 

That  the  devisor  by  his  will  declared  his  further  will  to  be,  that  not- 
withstanding any  of  the  uses  or  estates  before  created,  the  trustees 
might,  from  time  to  time,  during  the  lives  of  Henry  Charles,  Francis 
Michael,  and  Theresa  Ann,  or  any  of  them,  at  the  request  and  by  the 
direction  and  appointment  of  the  person  who,  for  the  time  being,  should 
be  entitled  to  the  rents  and  profits  of  the  property  in  question,  signified 
by  deed  under  his  or  her  hand  and  seal,  attested  by  two  or  more  wit- 
nesses, sell  or  exchange  the  property  for  such  prices  as  to  the  trustees 
should  seem  reasonable;  and  in  case  of  sale,  should  invest  the  money 
in  the  purchase  of  other  lands  under  the  same  trusts,  and  till  such  pur- 
chase, in  real  or  government  securities,  with  such  consent  as  aforesaid, 
testified  as  aforesaid,  the  interest  to  be  applied  to  the  same  trusts  as  the 
rents  of  the  lands. 

They  then  averred  the  death  of  the  devisor  in  17S0,  and  that  in 
1783,  the  trustees,  (Lord  Cadogan  and  Sir  Charles  Bucke,)  by  inden- 
ture of  bargain  and  sale,  sold  the  property  in  question  (being  a  portion 
of  that  devised),  for  13,400/.  (to  William  Byam  Martin,  under  whom 
the  defendants  claimed);  and  that  Henry  Charles  Englefield,  (then  Sir 
Henry  Charles,  j  by  the  same  indenture,  sold  the  standing  timber  to 
him  for  2448/.  (a) 

(fl)  See  3  Bingh.  207. 


5  Bingham,  48.  365 

It  was  then  averred,  that  as  well  the  said  sum  of  13,400/.,  as  the 
sum  of  244S/.,  were,  with  the  consent  of  the  said  Sir  Henry  Charles 
Englefield,  placed  at  interest  on  government  securities  in  the  name  of 
Lord  Cadogan,  (who  had  survived  Sir  C.  J5ucke,)  according  to  the  di- 
rections of  the  said  will,  for  the  purposes  and  on  the  trusts  therein 
mentioned. 

This  allegation  the  demandant  traversed,  and  issue  was  joined  on  the 
point. 

At  the  trial  before  Litlhdale  J.,  last  Berkshire  Summer  assizes,  the 
defendants,  in  support  of  their  ninth  plea,  proved,  that  in  1783  Lord 
Cadogan  had  invested  the  13,400/.  in  real  and  government  securities; 
and  that  in  the  year  1806  Mr.  Nowell,  the  solicitor  of  Sir  Henry  Charles 
Englefield,  having,  in  the  course  of  conversation  with  the  latter,  dis- 
covered that  Sir  Henry  had  received  the  2448/.  for  the  timber  left 
standing,  told  him,  that  as  the  timber  was  not  cut  down  he  had  no  right 
to  receive  the  money,  but  the  same  ought  to  have  been  paid  to  Lord 
Cadogan,  and  held  by  him  on  the  same  trusts  as  the  13,400/.  were  held. 
Sir  Henry  then  said  he  would  rectify  the  error,  and  on  the  29th  July 
1806,  he  transferred  to  the  account  of  Lord  Cadogan  3681/.  14^.  3  per 
cent,  consolidated  bank  annuities,  (being  the  amount  of  stock,  which 
said  2448/.  would  have  purchased  at  the  time  the  same  was  paid  to  Sir 
H.  C.  Englefield,)  and  the  draft  of  a  deed  of  declaration  of  trust  there- 
of was  prepared  by  Mr.  Nowell,  and  left  for  the  approbation  of  Mr. 
White,  of  Lincoln's  Inn,  the  solicitor  to  Lord  Cadogan. 

Before  this  draft  was  engrossed  Lord  Cadogan  died,  and  consequently 
no  declaration  of  trust  was  ever  executed,  nor  was  the  stock  accepted 
by  him;  but  the  whole  of  the  money  was  applied  under  the  trusts  of 
the  testator's  will. 

On  the  13th  July  1819,  by  an  act  of  parliament,  intituled  "An  act 
for  appointing  new  trustees  for  carrying  into  execution  the  trusts  and 
powers  contained  in  the  will  of  the  late  Sir  Henry  Englefield,  Baronet," 
and  to  which  tbe  demandant  was  a  consenting  party. 

Reciting  (inter  alia)  the  loan  of  12,500/.  to  Lord  Middleton,  Marma- 
dukc  Constable,  and  Robert  Dynely,  upon  mortgage  of  estates  in  York- 
shire, and  that  the  residue  of  trust-money  arising  from  sales  under  the 
will  of  Sir  H.  C.  Englefield,  consisted  of  4282/.  14*.  9f/.  3  per  cent, 
consolidated  bank  annuities,  then  standing  in  the  name  of  Lord  Cado- 
gan in  the  bank  books,  fthis  sum  was  made  up  of  the  3681/.  4.S.,  trans- 
ferred as  before  mentioned  by  Sir  II.  C.  Englefield,  and  601/.  invested 
by  tbe  trustees,) 

Also  tbe  dcatli  of  Charles  Lord  ('adogan  in  1807,  having  b}'  his  will 
appointed  Lord  Orford,  Hans  Sloane,  and  Joseph  White,  executors, 

Also  a  commission  of  lunacy,  dated  30th  October,  1808,  against 
Charles  Henry,  Earl  of  Cadogan,  the  son,  and  that  Lord  Orford  and 
Hans  Sloane  were  aj)pointed  committees  of  his  person  and  estates, 

Also  that  Francis  Cbohnelcy,  the  son,  (the  demandant,)  had  attained 
tbe  age  of  twenty-one  years,  and  under  the  will  of  Sir  H.  I'higlefield 
was  tlie  first  tenant  in  tail  of  tbe  manors,  &:c.  thereljy  devised. 

Also  that  Sir  H.  C.  Englefield  and  l''rancis  C'holmeley  were  desirous 
that  the  estates,  trusts,  and  powers  given  by  the  testator's  will,  which 
became  vested  in  said  Charles  Henry  Earl  of  Cadogan,  on  (lie  decease 
of  said  Charles  Lord  Cadogan,  should  be  vested  in  new  trustees, 


366  CHOLMELEY  V.  PAXTOX.    T.  T.   1828. 

It  was  enactci-l,  that  all  and  singular  the  manors,  &c.  (except  such  of 
them  as  had  been  sold,)  should  be  vested  in  VVm.  Cruise  and  Edward 
Jernin2;ham,  Esqrs.,  their  heirs  and  assigns;  and  that  the  said  Lord 
Orlord  and  Hans  Sloane  should  immediately  assign  to  Cruise  and  Jer- 
nin-'-ham  the  said  sum  of  12,500/.  secured  upon  mortgage,  and  all  the 
messuage,  &.c.  comprised  therein,  and  also  transfer  to  Cruise  and  Jer- 
ningham,  the  said  sum  of  42S2/.  145.  9d.  3  per  cent,  consolidated  annu- 
ities, to  the  uses,  and  upon  the  trusts,  &c.  subsisting  under  the  testa- 
tor's will,  &c. 

The  learned  Judge  directed  the  jury  that  the  tenants  had  not  establish- 
ed their  allegation  that  the  money  was  invested  according  to  the  direc- 
tions in  the  will,  inasmuch  as  the  will  required  that  the  money  should 
not  only  be  laid  out  with  the  consent  of  the  tenant  for  life,  but  that  such 
consent  should  be  given  by  a  deed  attested  by  two  witnesses,  whereas 
no  such  attested  consent  had  been  proved  as  to  the  investment  of  the 
13,400/.;  and  the  2448/.  as  not  having  been  obtained  by  a  sale,  pur- 
suant to  the  directions  of  the  will,  could  not  be  said  to  have  been  in- 
vested under  the  will. 

The  jury  found  all  the  issues  for  the  demandant,  and  particularly 
that  the  2448/.  had  not  been  invested  under  the  directions  of  the  will. 

Peake  Serjt.,  in  Michaelmas  term,  moved  to  set  aside  this  verdict, 
and  have  a  new  trial,  on  the  ground  that  the  evidence  established  the 
allegation  in  the  ninth  plea,  and  that  the  jury  had  been  misdirected. 

C7'0ss  and  Russell  Serjts.,  who  shewed  cause,  contended  that  the  evi- 
dence failed  to  establish  any  consent  by  deed  attested;  that  in  the  ab- 
sence of  such  consent  the  13,400/.  and  the  2448/.  had  not  been  invest- 
ed pursuant  to  the  directions  of  the  will;  that  the  issue,  therefore,  di- 
rectly raised  the  question  as  to  that  consent;  and  that  consequently  the 
direction  given  to  the  jury  was  right.  The  act  of  parliament  did  not 
alter  the  case,  for  it  merely  recited  that  the  sales  had  been  made,  and 
the  money  invested,  without  sanctioning  the  investment,  or  shewing 
that  it  had  been  made  pursuant  to  the  directions  of  the  will.  They  re- 
lied on  the  decision  in  the  same  case,  ante,  3  Bingh.  207. 

Bosanquet,  Peake,  and  Ludlow,  Serjts.,  in  support  of  the  rule. 

Best  C.  J.  The  issue  was  properly  left  to  the  jury,  and  properly 
found  by  them.  It  is  impossible  to  say  that  these  monies  were  laid  out 
according  to  the  directions  of  the  testator's  will.  Without  discussing 
the  question  whether  or  not  a  deed  attested  was  essential  to  the  consent 
of  Sir  H.  C.  Englefield,  it  is  sufficient  to  observe  that  one  of  the  sums 
was  not  so  much  as  invested  by  Lord  Cadogan.  In  general,  qui  facit 
per  alium,  facit  per  se;  but  that  maxim  cannot  be  applied  in  the  present 
case,  for  the  legislature  appointed  new  trustees,  because  the  second  Lord 
Cadogan  was  non  compos  mentis;  and  it  is  impossible  to  say  that,  if  he 
had  been  in  his  senses,  he  might  not,  if  applied  to  to  make  the  invest- 
ment which  was  made  by  Sir  H.  C.  Englefield,  have  refused  to  have 
done  so,  or  to  have  attempted  to  patch  up  a  transaction  invalid  from  the 
beginning. 

The  rest  of  the  Court  concurring,  the  rule  was 

Discharged. 


5  Bingham,  54.  367 

HOLL  and  Another  v.  CAROLINE  MARY  HADLEY.— p.  54. 

Variance.  Evidence  that  according  to  the  custom  of  the  trade  the  plaintiffs  de- 
livered coals  to  N.  H.  daily,  and  that  at  the  end  of  every  month  he  gave  a 
bill,  payable  in  two  months. 

Held,  not  sufficient  to  charge  defendant  upon  a  guarantee  for  the  payment  of 
coals  to  be  delivered  to  N.  H.  at  a  credit  of  two  months  from  the  delivery. 

The  plaintiffs  declared  that  by  a  certain  memorandum  of  agreement 
made  (between  the  plaintiffs  and  one  Nathaniel  Hadley  the  younger, 
and  the  defendant, — after  reciting  that  the  plaintiffs  had  for  some  time 
past  supplied  Nathaniel  Hadley  the  younger  vv'ith  coals,  on  a  credit  of 
two  months  from  the  delivery,  and  having  been  requested  to  furnish 
coals  to  an  increased  amount,  had  declined  to  do  so  without  having 
some  security  for  the  payment  thereof,  and  that  accordingly  Nathaniel 
Hadley  the  younger  had  requested  the  defendant  to  become  such  securi- 
ty, which  she  had  consented  to  do, — the  defendant  did  thereby  agree  to 
and  with  the  plaintiffs,  that  she  would  pay  and  discharge  all  such  sums 
of  money  as  might  thereafter  become  due  to  them  for  coals  sold  by  them 
to  Nathaniel  Hadley  the  younger,  to  any  amount  not  exceeding  300/., 
in  case  Nathaniel  Hadley  the  younger  should  not  pay  the  same  within 
one  month  after  the  expiration  of  the  aforesaid  credit  of  two  months; 
and  the  plaintiffs  thereby  agreed  to  give  the  defendant  a  further  period 
of  three  months  for  making  good  any  claim,  which  they  might  have  to 
make  under  the  said  guarantee,  and  which  should  be  in  equal  propor- 
tions with  Nathaniel  Hadley  and  Charles  Simpkin,  who  were  also  guar- 
antees for  Nathaniel  Hadley  the  younger. 

The  plaintiffs,  after  an  allegation  of  mutual  promises  to  fulfil  the 
agreement,  averred  a  delivery  of  coals  to  Nathaniel  Hadley  the  younger 
to  a  large  amount  upon  the  aforesaid  credit  of  two  months. 

Breach,  that  although  as  well  the  said  credit,  and  the  time  for  pay- 
ment of  the  price  of  the  said  coals  by  Nathaniel  Hadley  the  younger 
to  the  plaintiffs,  as  also  one  month  after  the  expiration  of  the  said  credit, 
had  elapsed,  heretofore,  to  wit,  on,  &:c.  at,  &c.  yet  N.  Hadley  the 
younger  did  not,  although  he  was  afterwards,  to  wit,  on,  &:c.  at,  «S:c.  re- 
quested by  the  plaintiffs  so  to  do,  pay  to  the  j)laintiffs,  or  either  of  them, 
the  said  sum  of  money  so  due  and  payable  to  the  plaintiffs  as  aforesaid, 
or  any  part  thereof,  but  wholly  neglected  and  refused  so  to  do,  of  all 
which  premises  the  defendant  afterwards,  to  wit,  on,  &.c.  at,  &c.  had 
notice;  and  although  the  said  further  period  of  three  months  from  the 
expiration  of  the  said  credit  of  two  months,  and  the  said  further  lime 
of  one  month,  for  the  defendant's  making  good  the  claim  which  the 
plaintiffs  had  under  the  said  guarantee,  had  long  since  elapsed,  and  al- 
though the  cfjual  proportion  of  the  said  claim  of  the  plaintifls  to  be 
borne  and  discharged  by  the  defendant  in  pursuance  of  the  said  agree- 
ment amounted  to  a  large  sum  of  money,  to  wit,  the  sum  of  300/.,  and 
the  defendant  afterwards,  to  wit,  on,  &c.  at,  &c.  had  notice  of  the 
premises,  and  was  then  and  there  requested  by  the  plaintifls  to  pay  them 
tiie  said  sum  of  300/.,  yet  the  defcndnnt,  not  regarding  her  said  agree- 
ment and  her  said  promise  and  undertaking,  had  not  yet  paid. 

On  the  trial  of  the  cause  before  Ihst  C.  J.,  at  the  sittings  in  London  in 
p/istcr  term  last,  the  plainlilfs  proved  the  agreement  set  forth  in  their  de- 
claration, namely,  a  guarantee  for  roals  to  be  supplied  to  the  defendant's 


368  CoATES  V.  Bainbridge.  T.  T.  1828. 

brother  on  a  credit  of  two  montlis  from  the  delivery.  The  plaintifl'a' 
witness  who  was  called  to  prove  the  delivery  of  the  goods,  stated,  that 
they  were  delivered  according  to  the  custom  of  the  trade,  which  was, 
thiU  coals  were  supplied  to  the  dealer  daily  during  the  course  of  a  month, 
and  tliat  on  the  last  day  of  the  month  the  dealer  gave  a  bill  at  two 
months  for  the  amount  of  the  coals  supplied  in  the  course  of  that  month, 
so  that  he  had  a  credit  of  three  months  from  the  delivery  of  such  of 
the  coals  as  were  supplied  on  the  first  day  of  the  month,  and  more  than 
two  months'  credit  for  every  parcel  of  coals  supplied,  ^except  such  as 
might  be  delivered  on  the  last  day  of  the  month. 

On  the  part  of  the  defendant  it  was  contended,  that  this  was  a  dealing 
at  variance  with  the  express  language  of  the  guarantee,  which  was  for 
a  credit  of  two  months  from  the  delivery.  On  the  part  of  the  plain- 
tiffs it  was  urged,  that  the  delivery  being  according  to  the  custom  of 
the  coal  trade,  which  must  have  been  in  the  contemplation  of  the  par- 
ties at  the  time  the  guarantee  was  executed,  the  whole  supply  of  coals 
for  each  month  must  be  considered  as  delivered  on  the  last  day  of  the 
month,  which  was  a  delivery  within  the  terms  of  the  guarantee.  The 
plaintiffs,  however,  were  nonsuited. 

JVilde  Serjt.  having  obtained  a  rule  nisi  to  set  aside  the  nonsuit,  on 
the  grounds  urged  on  the  part  of  the  plaintiffs  at  the  trial, 

Bosanquet  Serjt.,  who  shewed  cause,  urged  that  the  variance  was 
material;  for  a  large  quantity  of  coals  might  be  delivered  on  the  first 
day  of  a  month;  the  dealer  might  be  solvent  at  the  end  of  two  months 
from  that  day,  and  insolvent  before  the  expiration  of  three;  so  that  by 
extending  the  credit  in  this  way  to  three,  the  defendant's  responsibility 
would  be  enlarged  greatly  beyond  what  she  had  stipulated  for;  and  her 
agreement  contained  no  mention  of  the  custom  of  the  trade. 

IVihle.  It  appears  from  the  recital  of  the  agreement  to  have  been 
the  intention  of  the  parties  that  the  supply  of  coals  should  be  continued 
on  the  same  footing  as  before;  and  the  evidence  shews  that  it  was  the 
course  of  dealing  between  the  parties  not  to  reckon  the  days  of  the  cur- 
rent month,  but  to  consider  the  coals  as  delivered  all  on  the  last  day  of 
the  month.     There  is,  perhaps,  a  latent  ambiguity  in  the  agreement, 

but  the  evidence  has  cleared  it  up.  y-r  7  7. 

^  Cur.  adv.  viilt. 

Best  C.  J.  now  said,  With  ever}"^  anxiety  to  get  rid  of  the  nonsuit  in 
this  case,  we  are  of  opinion  it  cannot  be  set  aside. 

Rule  discharged. 


COATES  and  Another,  Assignees  of  PLASKETT,  a  Bankrupt,  v. 
BAINBRIDGE  and  Others.— p.  58. 

Defendants'  agents  abroad,  by  order  of  defendants,  received  money  on  defend- 
ants' account,  and  stated  the  fact  in  a  letter  to  defendants.  Defendants  repli- 
ed, acknowledging  the  receipt  of  the  agents'  letter,  and  giving  them  directions 
as  to  the  disposition  of  the  money  : 

Held,  that  the  agents'  letter  was,  coupled  with  the  defendants',  admissible  in 
evidence  to  charge  the  defendants  with  tlic  rcccijit  of  the  money. 

Action  for  money  had  and  received  by  the  defendants  to  the  use  of 
plaintiffs  as  assignees  of  Plaskett. 


5  Bingham,  58.  369 

At  the  trial  before  Best  C.  J.,  London  sittings  after  Hilary  term,  a 
verdict  was  taken  for  the  plaintifls  for  956/.  5.S'.,  subject  to  the  opinion 
of  the  Court  upon  a  special  case,  with  liberty  to  turn  it  into  a  special 
verdict.  Of  this  case  it  is  only  necessary  for  the  purpose  of  the  pre- 
sent decision  to  state  the  following  facts,  the  Court  having  ordered  sun- 
dry contested  points  on  which  tliej'  delivered  no  opinion,  to  be  re-argued 
upon  a  special  verdict, 

Thomas  and  Flaherty,  merchants  at  the  Cape  of  Good  Hope,  to 
whom  Plaskett  had  been  in  the  liabit  of  consigning  goods  to  be  sold  on 
his  account,  owed  1100/.  to  Plaskett  before  his  bankruptcy,  which  took 
place  on  the  2d  of  November  1S20. 

In  September  1820,  Plaskett  was  much  pressed  for  payment  by  one 
Stevens,  to  whom  he  owed  1000/.  Plaskett,  therefore,  gave  him  four 
bills  of  exchange  for  250/.  each,  drawn  on  Thomas  and  Flaherty,  at 
six,  nine,  twelve,  and  fifteen  months,  together  with  a  letter  of  advice 
to  them. 

After  the  act  of  bankruptcy,  these  bills  were  returned  by  Stevens  to 
Plaskett,  and  cancelled,  because  by  some  mistake  they  did  not  corre- 
spond with  the  letters  of  advice,  and  Plaskett  drew  in  lieu  thereof  four 
other  bills  on  Thomas  and  Flaherty,  at  six,  nine,  twelve,  and  fifteen 
months,  bearing  date  the  30th  of  October,  but  not  in  fact  drawn  till 
after  the  2d  of  November. 

Stevens  indorsed  these  bills  to  the  defendants  as  a  collateral  security 
for  a  debt  due  to  them  from  Stevens. 

In  February  1S21,  defendants,  at  the  request  of  Stevens,  sent  these 
bills  with  the  letter  of  advice,  and  a  letter  of  recommendation  which 
they  had  procured,  to  Marsh  and  Cadogan  at  the  Cape,  with  authority 
to  present  them  to  Thomas  and  Flaherty  there.  Marsh  and  Cadogan 
answered  as  follows: — 

"Gentlemen, — The  arrival  of  the  Antelope  on  the  11th  ult.  put  us 
in  possession  of  your  favour  of  the  17th  February  last,  enclosing  the 
four  bills  drawn  by  Mr.  John  Plaskett  on  Messrs.  Thomas  and  Flaher- 
ty, each  for  250/.,  at  six,  nine,  and  twelve  months'  sight. 

**  For  these  bills  we  have  this  day  settled  on  the  condition  of  interest 
deducted  43/.  15*.,  and  of  your  guaranteeing  them  against  future  liabi- 
lity on  their  payment. 

<'The  sum  thus  paid  to  us  this  day,  is  rix  dollars  11,475,  being  950/. 
5s.,  at  140  exchange.  For  the  conversion  of  this  currency,  (loss  our 
commission,)  we  must  wait  necessarily  until  the  first  government  draw- 
ing. 

"Hoping  that  this  settlement  may  favour  us  with  your  approbation, 
we  subscribe  ourselves  very  truly, 

"Cape  of  Good  Hope,  Marsh  atid  Caddcan." 

"2d  August  1821. 
"Messrs.  Bainbridge  and  Hrown,   London." 

Immediatoly  on  the  receipt  of  the  above  lettor,  tlir  (icfi'iKlnnls  infoi'm- 
cd  Stevens  that  the  bills  had  been  paid  to  Marsh  and  Cadogan.  The 
defendants  afterwards  sent  the  following  reply  to  Marsh  ami  Cadogan. 

"  Gentlemen, — We  have  to  acknowledge  the  receipt  of  your  favour 
of  the  2d  August,  ad visiiifr  your  being  in  pnssrs.sion  nf  nins  of  the  1  1th 
February,  covering  1000/.  in  four  bills  on  Messrs.  'I'homas  and  Flaher- 
ty, who  had  at  once  complied  with  the  drawer's  wishes,  and  you  have 

VOL.   XV.  47 


370  CoATLs  V.  Bainruiuoe.  T.  T.  1828. 

settlcil  will)  them  on  tlic  conditions  of  discount  deducted  43/.  15s.,  and 
of  our  guaranteeing  tlicm  against  future  liability  of  payment.  This  we 
do  with  pleasure,  because  we  are  assured  the  circumstances  under  which 
tliese  bills  were  drawn  were  fully  explained  to  IVIr.  Plaskett's  assignees, 
who  are  satisfied  therewith,  and  his  accounts  passed  accordingly;  we, 
therefore,  engage  to  hold  you  harmless  for  the  stipulation  you  have  en- 
tered into  on  our  behalf.  We  observe  you  have  placed  to  our  credit, 
11,475  rix  dollars,  being  9561.  5s.,  the  amount  received  at  140  ex- 
change, and  we  note  for  the  conversion  of  this  fund  into  bills  (less  your 
commission)  you  must  wait  the  drawing  of  government.  We  shall  of 
course  be  glad  to  receive  the  amount  as  soon  as  you  can  procure  the 
bills,  and  we  beg  to  offer  our  thanks  for  your  attention  to  this  matter. 
"London,  Nov.  21,  1821.  " Bainbridge  and  Bkown." 

*<  Messrs.  Marsh  and  Cadogan." 

And  defendants  again  wrote  to  Marsh  and  Cadogan  to  the  following 
effect: — 

*' Gentlemen, — We  beg  to  hand  you  a  triplicate  of  our  last  respects 
of  the  21st  November,  and  feel  some  surprise  that  you  have  never  since 
taken  the  least  notice  of  your  engagement  to  remit  us  the  11,475  rix 
dollars  received  for  our  account  from  Messrs.  Thomas  and  Flaherty, 
which  agreeable  to  your  letter  of  2d  August  you  stated  you  should  do 
as  soon  as  the  government  drew.  Now  as  we  know  they  have  since 
drawn,  we  can  only  presume  in  the  hurry  of  other  engagements  ours 
has  escaped.  Our  friend,  William  Effingham  Lawrence,  Esq.  having 
occasion  to  visit  the  Cape,  we  request,  in  the  event  of  your  not  having 
remitted  us  the  amount,  that  you  will  be  pleased  to  pay  over  to  him  the 
ll,475rix  dollars  (less  your  com.mission). 

"London,  April  24,  1822.  "Bainbridge  and  Brown." 

'*  Messrs.  Marsh  and  Cado":an." 

The  defendants  never  received  the  money  from  Marsh  and  Cadogan, 
they  having  failed  shortly  after  the  date  of  their  letter  of  August  2d. 

One  question  was,  Whether  the  foregoing  letters  of  Marsh  and  Cado- 
gan were  properly  received  in  evidence  to  charge  the  defendants  with 
the  receipt  of  the  money? 

fVilde  Serjt.  for  the  plaintiff.  The  letters  of  Marsh  and  Cadogan, 
taken  by  themselves,  could  not  perhaps  be  admissible  in  evidence 
against  the  defendants,  the  present  rule  being  that  though  whatever  an 
agent  says  or  writes  in  the  making  of  a  contract  is  evidence  against  his 
principal,  the  testimony  of  the  agent  himself  is  necessary  to  prove 
whatever  passes  on  the  subject  of  the  contract  on  other  occasions.  But 
the  letters  as  adopted  and  acted  on  by  the  defendants,  and  coupled  with 
the  defendants'  letters,  are  clearly  admissible;  they  are  essential  to  (he 
explanation  of  the  defendants'  letters,  and  with  that  explanation  the 
defendants'  letters  contain  a  clear  admission  that  the  money  in  question 
had  been  received  by  these  agents  on  their  behalf. 

Taddy  Serjt.    for  the  defendants,  cited    Kahl  v.  Jansnn,   4  Taunt. 

5G5;    Langhorn  \.  Jllnntt,   4  Taunt.   511;    Fairlie  v.  Ilasiings,    10 

Ves.  128.  ^7  // 

Cu?'.  adv.  vuli. 

Best  C.  J.  this  day,  after  requiring  that  the  principal  question  in 
the  cause  should  he  put  into  a  special  verdict,  and  argued  again,  said 
on  the  subject  of  the  evidence,  The  letters  written  by  the  agents,  would 


3  Bingham,    38.  371 

not  have  been  admissible  unless  they  had  been  written  by  the  agents 
while  acting  within  the  scope  of  their  authority,  upon  a  matter  entrust- 
ed to  them  by  their  principals.  The  letters  of  these  agents  were  writ- 
ten under  these  circumstances;  the  principals  have  adopted  what  was 
done  by  their  agents,  and  having  upon  the  faith  of  their  assertion  taken 
credit  for  the  sum  named  in  those  letters,  the  letters  were  properly  re- 
ceived in  evidence. 


PARKER  V.  CROLE.— p.  63. 

Bankruptcy  and  certificate  are  no  bar  to  an  action  in  tort  against  a  broker  for 
selling  out  plaintiff's  stock  contrary  to  orders. 


KYMER  and  Others,  Assignees  of  J.  O'BRIEN,  v.  LARKIN  and 

Another. — p.  71. 

By  charter-party  B.  hired  a  ship  to  convey  a  cargo  to  Hayti,  and  engaged  to  find 
a  cargo  for  the  homeward  voyage.  On  the  ship's  arrival  at  Hayti,  B.  assign- 
ed the  cargo  to  C.  as  a  security  for  advances  made  by  him.  The  hire  of  the 
ship  not  having  been  paid,  defendants,  the  owners,  under  the  judgment  of  a 
court  at  Hayti,  attached  the  cargo  in  the  hands  of  C.  to  discharge  defendants' 
claim  for  the  hire.  B.  having  declined  to  find  a  cargo  for  the  homeward  voy- 
age, the  captain  procured  one  for  defendants,  who  received  the  freight  on  its 
arrival  in  London. 

B.  having,  subsequently  to  the  said  assignment,  become  bankrupt;  Held,  that 
liis  assignees  could  not  recover  from  defendants  the  proceeds  of  the  cargo  at- 
tached at  Hayti,  or  cf  the  homeward  freight. 


CARTER  and  Otliers  v.  SANDERSON.— p.  79. 

1.  Ill  a  company  constituted  Ijy  letters  patent,  with  power  to  make  i-casnnablc 
bye-laws,  a  bye-law  for  the  steward  to  provide  a  diimer  for  certain  members  of 
the  company  on  Lord  Mayor's  day,  witli  an  allowance  for  doing  so,  or  to  j)ay 
a  fine  of  20/.  or  excuse  himself  Ijy  swearing  he  is  not  worth  300/.,  is  a  bad  bye- 
law.     At  all  events, 

2.  The  allowance  is  a  condition  precedent,  and  ouglu  to  be  averred. 

Debt  by  (ho  master  and  wardens  of  the  Cooper's  Company,  on  a  bye- 
law  of  the  company,  against  their  steward,  to  recover  a  |)enalty  incurred 
under  the  bye-law,  for  not  giving  a  dirnier  to  the  company  on  J^ord 
Mayor's  day.  Tiie  declaration  set  forth  certain  letters  j)al(!nt  of  the 
10  IF.  7.  constituting  the  compatiy  a  guild  or  (Vaternity,  and  conferring 
on  them  various  privileges,  and  among  others,  that  the  masters,  wardens, 
or  keepers,  and  commonalty  for  the  timeb(;ing  might  lawfully  and  with 
impunity  make  lawful  and  honest  meetings,  and  make  reasonable  law.s, 
statutes,  and  ordinances  for  the  wholesome  ridn  and  government  of  the 
said  mystery  according  to  the  exigency  of  necessity,  as  often  as  and 
when  need  should  be,  so  as  such  laws,  statutes,  and  ordinances  should 
not  anyways  be  against  the  laws  and  customs  of  his  saitl  kingdom   of 


372  Cauteu  v.  Samjerson.  T.  T.  1S28. 

Englftiid,  or  uf  his  said  city;  likewise  certain  letters  patent  of  the  13  Car. 
Ji.  confirming  the  grant  of  IG  H.  7,  conferring  certain  additional  privileges 
on  the  comijany,  and,  among  others,  that  the  master,  wardens,  and  as- 
sistants of  tiie  said  company  for  the  time  being,  or  the  greater  part  of 
them,  at  any  ti;ne  or  times  respectively  should  or  mighthave  full  power 
and  authority  by  virtue  of  the  said  last-mentioned  letters  patent,  to  make, 
ordain,  constitute,  appoint,  and  set  down  such  reasonable  orders  and 
ordinances  in  writing  as  to  them  the  said  master,  wardens,  or  assistants, 
or  the  greater  part  of  them,  for  the  time  being  should  seem  meet  and 
necessary,  according  to  their  good  discretion  respectively,  as  well  for 
and  concerning  the  oaths  that  should  be  administered  to  the  master, 
wardens,  assistants,  and  freemen  of  the  said  company,  and  the  necessary 
ofiicers  of  and  concerning  the  same,  as  also  for  the  good  order,  rule,  and 
government  of  the  master,  wardens,  assistants,  and  commonalty  afore- 
said, and  all  other  members  of  the  said  society  or  thereunto  belonging, 
in  and  touching  all  necessary  matters  and  things  concerning  the  same; 
and  that  whensoever  the  said  master  and  wardens  for  the  time  being 
should  make,  ordain,  and  establish  such  orders,  acts,  and  ordinances  as 
aforesaid,  they  respectively  should  have  power  therein  to  provide  and 
limit  such  reasonable  pains,  penalties,  and  punishments,  either  by  fines 
or  amerciaments,  or  by  any  other  lawful  ways  or  means  whatsoever, 
upon  all  offenders,  breakers,  neglecters,  or  non-observers  of  the  same,  or 
any  of  them,  as  the  master,  wardens,  and  assistants  of  the  said  company, 
or  the  major  part  of  ihem,  for  the  time  being  respectively,  should  think 
fit,  necessary,  and  convenient;  and  that  thereupon,  or  at  any  time  after, 
the  said  master,  wardens,  or  keepers  of  the  commonalty  of  freemen  of 
the  mystery  of  Coopers,  London,  and  of  the  suburbs  of  the  same  city 
aforesaid,  or  such  of  them  whom  it  did  concern,  should  or  might  by 
virtue  of  the  said  last-mentioned  letters  patent  have,  levy,  recover,  and 
take  the  said  fines  and  amerciaments  by  action  of  debt  or  by  distress  of  the 
goods  and  chattels  of  such  ofiender  or  offenders,  according  to  the  laws  and 
statutes  of  this  realm;  and  the  same  fines  and  amerciaments  so  levied  and 
taken  should  and  might  retain,  convert,  and  enjoy  to  and  for  the  common 
use  and  supportation  of  the  said  coinmonalty:  all  which  acts,  orders,  and 
ordinances  so  as  aforesaid  to  be  made,  his  late  Majesty  King  Charles  the 
Second,  did  will  should  be  observed  and  kept  under  the  pains  and  pen- 
alties therein  to  be  contained,  so  as  always  such  orders,  ordinances,  fines, 
and  amerciaments  be  reasonable,  and  not  repugnant  or  contrary  to  the 
laws  and  statutes  of  his  said  late  Majesty  King  Charles  the  Second's 
realm  of  England,  nor  contrary  to  the  due  custom  of  his  cily  of  London. 
The  declaration  then  averred,  that  after  the  making  of  the  said  letters- 
patent  of  his  said  late  r^fajesty  King  Charles  the  Second,  and  after  the 
acceptance  thereof  as  aforesaid,  and  before  the  commencement  of  this 
suit,  to  wit,  on  the  3d  day  of  March,  in  the  fourteenth  year  of  the  reign 
of  our  late  sovereign  lord  King  George  the  Second,  one  Bartholomew 
Clark  then  being  master  of  the  said  company,  and  one  Daniel  Lambert 
and  one  John  Ilarcourt  then  being  wardens  of  the  said  compan}^,  and 
the  major  part  of  the  then  assistants  of  the  said  company  being  then 
assernbled  together  at  the  common  hall  of  the  said  company,  did, 
by  virtue  of  the  power  and  authority  by  the  said  letters-patent  of 
his  said  late  Majesty  King  Charles  the  Second  to  them  given  and 
granted  to  make,  ordain,  constitute,  appoint,  and  set  down  such 
reasonable  orders  and  ordinances  in  writing  as  to   them  seemed  meet 


5  Bingham,  79.  373 

and  necessary  according  to  their  good  discretion  respectively,  as 
well  for  and  concerning  the  oaths  which  should  be  administered 
to  the  master,  wardens,  assistants,  and  freemen  of  the  said  company, 
and  the  necessary  officers  of  and  concerning  the  same,  as  also  for  the 
good  order,  rule,  and  government  of  the  master,  wardens,  assistants,  and 
commonalty  aforesaid,  and  all  other  members  of  the  said  society,  or 
thereunto  belonging,  in  and  touching  all  necessary  matters  and  things 
concerning  the  same,  and  not  repugnant  or  contrary  to  the  laws  and 
statutes  of  this  realm  of  England,  nor  contrary  to  the  due  custom  of  the 
said  city  of  London;  and  by  one  of  which  said  orders  and  ordinances  it 
was  then  and  there,  and  is(amongstotherthings)ordained  and  established 
by  the  then  master,  wardens,  and  the  major  part  of  the  then  assistants  of 
the  said  company,  by  the  authority  aforesaid^  that  every  year,  on  the 
first  Tuesday  in  June,  or  within  eighteen  days  then  next  after,  the  mas- 
ter, wardens,  and  assistants  of  the  said  society  for  the  time  being,  or  the 
greater  part  of  them,  should  or  might  elect  or  choose  three  persons, 
being  of  the  livery  of  the  said  company,  to  be  stewards  of  the  same 
company,  to  provide  at  their  own  proper  costs  and  charges,  (with  such 
allowance  out  of  the  stock  of  the  said  company  or  otherwise  as  the  mas- 
ter, wardens,  and  assistants  of  the  said  company  for  the  time  being,  or 
the  major  part  of  them,  should  think  fit  and  convenient  to  be  allowed  in 
that  behalf)  on  the  day  when  the  Lord  Mayor  should  be  presented  at 
Westminster  to  take  his  oath,  one  dinner  at  the  common  hall  of  the  said 
company,  for  the  whole  of  the  livery  or  clothing  thereof: 

And  if  any  person  or  persons  so  chosen  steward  or  stewards  aforesaid 
should  refuse  to  serve  or  hold  the  office  of  steward,  and  to  do  and  perform 
as  aforesaid,  having  no  reasonable  cause  to  the  contrary,  to  be  admitted 
and  allowed  of  by  the  said  master,  wardens,  and  assistants  for  the  time 
being,  or  the  major  part  of  them,  then  each  and  every  of  them  so  refus- 
ing should  forfeit  and  pay  to  the  master  and  wardens  of  the  company, 
upon  reasonable  demand,  the  sum  of  20/.  to  the  use  of  the  company; 
provided  always,  that  if  any  person  so  elected  as  aforesaid  should  within 
the  space  of  one  calendar  month  after  notice  given  him  of  such  his  elec- 
tion, go  before  one  of  his  Majesty's  justices  of  tbe  peace  for  the  city 
of  London  or  county  of  Middlesex,  and  make  oath  in  writing  that  he 
was  not  at  the  time  of  such  election,  or  at  the  time  of  making  such  oath 
as  aforesaid,  worth  to  the  value  of  300/.  of  lawful  money  of  Great 
liritain,  in  estate  real  or  personal,  of  any  sort,  kind,  or  nature  whatso- 
ever, or  to  that  or  the  like  eflect,  and  should  within  the  time  aforesaid 
produce  and  leave  the  said  writing  with  the  master  and  wardens  of  the 
company,  or  either  of  them,  then  and  in  such  case  every  such  person 
should  l)e  wholly  excused,  freed,  and  discharged  from  all  payments, 
fines,  and  forfeitures  incurred  by  not  conforming  to  the  said  ordinance; 
and  in  case  any  such  person  should  in  a  subsefjuent  year  or  years  be 
elected  again  into  the  said  office  of  steward  of  the  said  company,  such 
person  again  making  oath  in  writing,  and  producing  and  leaving  it  as 
aforesaid,  should  be  excused,  freed,  and  discharged  as  aforesaid,  and  so  as 
often  as  the  like  case  should  happen:  which  said  orders,  bye-laws,  and 
ordinances  were  afterwards,  to  wit,  on  the  third  day  of  June,  in  the  year 
of  our  Lord  1711,  to  wit,  at  I^ondon  aforesaid,  in  the  pari.sh  and  ward 
nforesaid,  examined  and  dul}'  approved,  ratified  and  eonfirmed  by  the 
Right  Honourable  I'hilip  L(jrd  Hardwicke,  IJaron  of  Ilardwickc,  then 
l^ord  High  Chancellor  of  Great  Britain,  Sir  W.  Lcc,  knight,  then  Lord 


374  Caim  cu  i\  Sanderson.  T.  T.  1828. 

Chief  Justice  of  his  hife   Majesty  Kinj;  George  the  Second's  Court  oi 
King's  liench,  and  Sir  John  Willis,  knight,  then  Lord  Chief  Justice  of 
his  late  Majesty  King  George  the  Second's  Court  of  Common  Pleas,  ac- 
cording to  the  form  and  effect  of  the  statute  in  such  case  made  and  pro- 
vided: of  which  said  orders,  hye-laws,  and  ordinances  the  said  defend- 
ant afterwards,  to  wit,  on  the  5th  day  of  June  in  the  year  of  our  Lord 
1S27,  to  wit,  at  London  aforesaid,  in  the  parisli  and  ward  aforesaid,  had 
notice.      And  the  said  plaintilTs  in  fact  say,  tiiat  after  the  making  of  the 
saitl  orders,  hye-laws,  and  ordinances  as  aforesaid,  and  after  the  same 
were  so  examined,  approved,  ratified,  and  confirmed  as  aforesaid,  and 
before  the  commencement  of  this  suit,  to  wit,  on  the  2Sth  day  of  May, 
in  the  year  last  aforesaid,  being  the  Monday  next  before  the  feast  of* 
Pentecost,  otherwise  called  Whitsuntide,  in  the  year  last  aforesaid,  to 
wit,  at  London  aforesaid,  in  the  parish  and  ward  aforesaid,  the  said  plain- 
tiff Robert  Carter  was  duly  elected  master  of  the  said  company,  and  the 
said  plaintiffs  Abraham  Algar  and  James  Francis  Firth  were  duly  elected 
wardens  of  the  said  company;  and  that  the  said  plaintiffs  afterwards,  to 
wit,  on  the  5th  day  of  June,  in  the  year  last  aforesaid,  being  the  first 
Tuesday  in  June,  in  the  year  last  aforesaid,  &c.,  were  respectively  duly 
sworn  into  the  said  offices  of  master  and  wardens  of  the  said  company,  and 
from  thence  hitherto  have  been  and  still  are  respectively  master  and  war- 
dens of  the  said  company,  to  wit,  at,  &c.      And  the  said  plaintiffs  further 
sa)',  that  after  the  making  of  the  said  orders,  bye-laws,  and  ordinances 
as  aforesaid,   and  after  the  same  were  so  examined,  approved,  ratified, 
and  confirmed  as  aforesaid,  and  after  the  said  defendant  had  notice  of  the 
same,  and  before  the  commencement  of  this  suit,  to  wit,  on  the  said  5th 
day  of  June,  in  the  year  last  aforesaid,  being  the  first  Tuesday  in  June, 
in  the  year  last  aforesaid,  to  wit,  at,  &c.,  the  said  defendant  and  one 
Heffield  Rosling,  and  one  Thomas  Giles,  (they  the  said  defendant,  the 
said  Heffield  Rosling,  and  the  said  Thomas  Giles,  then  and  there  being 
respectively  of  the  livery  of  the  said  company,)  were  by  the  then  mas- 
ter and  the  then  wardens  of  the  said  company,  and  the  major  part  of  the 
then  assistants  of  the  said  company  for  the  time  being,  duly  elected  and 
chosen  to  be  stewards  of  the  said  company  for  the  purpose  in  the  said 
bye-law  mentioned;  of  which  said  election  and  choice  of  him  the  said 
defendant,  he  the  said  defendant  afterwards,  to  wit,  on,  &c.,  at,  &c.,  had 
notice.     And  the  said  plaintiffs  further  say,  that,  although  he  the  said 
defendant  afterwards,  to  wit,  on,  &c.,  at,  &c.,   was  in  due  manner  sum- 
moned to  be  and  appear  at  the  meeting  of  the  said  company  to  beholden 
on  the  9th  day  of  November,  in  the  year  of  our  Lord  1827, — being  the 
day  on  which    the  Lord  Mayor    for  the  said  city  was    presented    at 
Westminster,  to  take  his  oath, — to  take  upon  himself  the  office  of  one  of 
the  stewards  of  the  said  company  as  aforesaid,  and  although  afterwards, 
to  wit,  on,  &c.,  the  Lord  JMayor  for  the  said  city  was  presented  at  West- 
minster to  take  his  oath,  to  wit,  at,  &c.,  and  although  he  the  said  defend- 
ant did  not  within  the  space  of  one  calendar  month  after  notice  given 
him  of  such  his  election  as  aforesaid,  go  before  one  of  bis  majesty's  jus- 
tices of  the  peace  for  the  said  city  of  London  or  county  of  P.Iiddlesex,and 
make  oath  in  writing  that  he  the  said  defendant  was  not  at  the  timeofsucb 
election,  or  at  the  time  of  such  making  oath  as  aforesaid,  worth  to  the 
value  of  300/.  of  lawful  money  in  estate  real  or  personal,  of  any  sort, 
kind,  or  nature  whatsoever,  or  to  that  or  the  like  clfect;  yet  the  said  de- 
fendant, not  regarding  the  said  orders,  bye-laws,  and  ordinances  as  afore- 


5  Bingham,  79.  375 

said,  did  not  nor  would  provide  for  the  whole  livery  or  clothing  of  the 
said  company  a  dinner  on  the  said  day  when  the  Lord  iNlayor  for  the 
said  city  was  presented  at  Westminster,  to  take  his  oath,  nor  serve  or 
hold  his  said  office  of  steward,  but  the  said  defendant  (although  he  had 
no  reasonable  cause  to  the  contrary)  then  and  there  wholly  neglected  and 
refused  so  to  do,  to  wit,  at,  &c. ;  by  means  whereof,  and  by  virtue  of 
the  said  bye-law,  he  the  said  defendant  after  the  making  of  the  said  bye- 
law,  to  wit,  on,  &:c.,  at.  Sac,  forfeited  to  and  became  liable  to  pay,  and 
ought  to  have  paid,  to  the  said  plaintiffs,  so  being  the  master  and  war- 
dens of  the  said  company  as  aforesaid,  upon  reasonable  demand,  a  large 
sum  of  money,  to  wit,  the  sum  of  20/.  of  lawful  money  to  the  use  of  the 
said  company,  which  said  sum  of  money,  although  afterwards,  to  wit,  on, 
&c.  and  often  afterwards,  to  wit,  at,  &c.  reasonable  demand  thereof  was 
made  upon  the  said  defendant  by  the  said  plaintiffs,  so  being  the  master 
and  wardens  of  the  said  company  as  aforesaid,  is  still  due  and  unpaid; 
per  quod  actio  accrevit.  The  second  count  charged  the  defendant  with 
not  taking  on  himself  the  office  of  steward,  and  not  providing  dinner  for 
the  company,  although  he  had  no  cause  to  the  contrary.  Demurrer 
and  joinder. 

Taddij  Serjt.  in  support  of  the  demurrer.  The  custom  as  alleged  is 
bad,  and  the  defendant  is  not  brought  within  it,  even  as  alleged.  The 
Master  and  Company  of  Framework  Knitters  v.  Green,  1  \A.  Raym. 
113;  Wallis's  case,  Cro.  Jac.  555;  Gee  v.   fVilden,  2  Lutw.  1320. 

/FiVr/e  Serjt.,  contra,  referred  to  Taverner^s  case,  Sir  T,  Raym.  446; 
The  Vintner's  Company  v.  Passey,  1  Burr.  235;  King  v.  Jlshioell, 
12  East,  22. 

Best  C.  J.  The  declaration  is  insufficient,  for  want  of  an  averment 
that  the  company  had  offered  the  defendant  the  due  allowance  towards 
the  expense  of  the  dinner.  But  the  bye-law  has  every  vice  that  a  bye- 
law  can  have.  No  doubt  a  bye-law  to  give  a  feast  may  under  certain 
circumstances  be  good;  it  may  be  for  the  benefit  of  the  corporation,  be- 
cause, if  they  are  called  together  for  purposes  of  business,  it  is  necessary 
they  should  have  refreshment,  and  it  may  be  proper  to  point  out  tlie  in- 
dividual who  shall  provide  it.  A  custom  to  such  effect,  as  in  the  case 
in  Croke,  may  be  good  upon  the  admission  of  members,  because  upon 
such  occasions  all  the  body  are  called  together.  That  decision,  how- 
ever, is  of  (ioui)tful  autliorily,  because  thougli  a  corporation  may  sue  for 
a  fmc,  they  cannot  imprison,  as  they  arc  supposed  to  have  done  there. 

But  a  bye-law  such  as  the  present  cannot  be  good:  the  expense  of  tho 
dinner  is  a  burthen  cast  on  the  steward,  for  which  no  sufficient  reason 
is  alleged.  The  company  arc  not  supposed  to  !)e  called  together  for  bu- 
siness, but  for  mere  luxury,  according  to  the  language  in  Lord  l{ay- 
mond;  and  the  bye-law  is  one  which  their  cliarter  does  not  authorise 
them  to  make,  fur  it  is  imijossible  lliat  a  dinner  uncalled  for  by  purposes 
of  business  can  be  justified  under  a  power  to  make  bye-laws  for  the  good 
regulation  of  the  company.  The  case  in  Lord  Raymond,  therefore,  is 
immediately  in  point.  As  to  the  bye-law's  having  had  the  sanction  of 
the  Chancellor  and  the  Judges,  the  bye-law  in  the  case  just  alluded  to 
must  have  had  that,  for  it  is  requisite  to  all.  The  bye-law  there  was  to 
give  a  dinner  to  a  company  on  a  staled  day,  or  pay  a  penalty;  and  it 
dill  not  appear  that  any  iiusiness  was  to  be  performcfl  on  the  occasion: 
it  was  argued,  "the  bye  law  is  ill,  because  it  is  not  said  that  this  dinner 
was  appointed  to  the  end  ihit  the  company  shouhl  assemble  and  consult 


376      Carter  v.  Sanderson.  T.  T.  1828. 

of  things  beneficial  to  the  corporation:  it  docs  not  appear  but  this  was 
only  for  luxury:"  to  which  the  Court  agreed,  "  as  members  of  corpora- 
tions are  iipt  bound  to  perform  bye-laws  unless  they  are  reasonable;  and 
the  reasonableness  of  them  is  examinable  by  the  Judges.  Then  this  bye- 
law  cannot  be  good  in  this  case  of  a  new  corjjoration,  because  it  docs 
not  appear  for  what  purpose  the  dinner  was  made,  and  it  may  be  only 
for  good  fellowship."  If  that  bye-law  was  bad,  tliis  must  be  bad  also; 
the  dinner  not  being  required  for  any  purpose  but  good  fellowship. 

There  is  also  an  uncertainty  as  to  what  the  master  is  to  contribute, 
which  is  an  essential  defect  in  the  law;  but  it  is  bad  on  another  ground 
of  no  light  importance, — the  impolicy  of  multiplying  oaths, — which 
ought  not  to  be  administered  except  on  solemn  occasions  for  the  pur- 
poses.of  justice.  This  law  is  enforced  by  a  penalty  of  20/.,  which  a  de- 
faulter must  pay,  unless  he  will  degrade  himself  by  swearing  he  is  not 
worth  300/. ;  an  oath  which  it  is  illegal  to  take,  and  illegal  to  adminis- 
ter. The  oath  which  must  be  taken  to  excuse  a  man  from  serving  the 
office  of  sheriff  is  necessary  for  the  purposes  of  justice,  in  the  adminis- 
tration of  which  the  sheriff' is  deeply  concerned;  but  it  is  not  necessary 
that  an  oath  should  be  administered  upon  the  occasion  of  a  dinner,  for 
good  fellowship. 

BuuRouGH  J. (a)  If  this  decision  were  to  turn  solely  on  the  oath,  I 
should  have  desired  time  to  consider  the  point,  because  an  oath  is  not 
unusual  on  similar  occasions.  But  the  declaration  is  bad  for  want  of  an 
averment  that  a  due  allowance  had  been  made  to  the  defendant  in  re- 
spect of  the  dinner;  that  allowance  is  a  condition  precedent  by  the  very 
terms  of  the  bye-law,  for  the  kind  of  dinner  must  altogether  depend 
upon  the  amount  of  the  allowance. 

Gaselee  J.  I  think  the  declaration  is  bad,  for  the  reason  assigned 
by  my  Brother  BiirroKgh.  The  party  who  was  to  provide  the  dinner 
was  to  have  an  allowance  for  so  doing,  and  to  provide  accordingly;  and 
the  tender  of  the  due  allowance  ought  to  have  been  averred. 

On  the  bye-law  itself  I  give  no  opinion.  I  doubt  whether  we  can, 
as  it  has  been  contended,  judicially  take  notice  of  the  proceedings  on 
Lord  Mayor's  day,  or  of  the  companies  that  attend  on  the  occasion  in 
Westminster  Hall.  At  all  events,  it  might  have  been  alleged  in  this 
declaration,  that  the  company  to  which  the  defendant  belongs  was  bound 
to  attend,  and  that  the  dinner  was  provided  in  consequence  of  such  at- 
tendance. On  this  bye-law,  too,  as  laid  in  the  declaration,  the  same 
person  might  be  appointed  to  serve  as  steward  every  year;  and  if  there 
be  any  restriction  to  such  re-appointment,  it  ought  to  have  been  stated. 

I  give  no  opinion  on  the  point,  whether  justices  of  the  peace  should 
administer  the  oath  which  has  been  referred  to,  although  I  think  it  desi- 
rable that  some  other  mode  should  be  devised  of  establishing  a  right  of 
exemption  to  serve  the  olTice  of  steward. 

Judgment  for  the  defendant, 

(a)  Park  J.  was  absent. 


HENLY  v.  The  Mayor  and  Burgesses  of  LYME.— p.  91. 

An  individual  who  has  sufiercd  loss  in  consequence  of  the  decay  of  sea-walls, 
which  a  corporation  is  directed  to  repair  under  the  terms  of  a  grant  from  the 


5  Bingham,  91.  377 

crown  conveying  a  borough,  and  pier  or  quay  with  tolls,  to  the  corporation,  may 
sue  the  corporation  for  damages. 

Case,  for  neglect  to  repair  sea-walls,  per  quod,  &c.  At  the  Dor- 
chester Spring  assizes  1S2S,  before  Liillcdale  J.,  after  the  evidence 
had  been  gone  through,  a  verdict  was,  by  consent  of  counsel  on  both 
sides,  taken  for  the  plaintiff  on  the  two  first  counts  of  the  declaration. 

The  first,  stated,  That  on  the  20th  of  June  in  the  tenth  year  of  Charles 
1.,  to  wit,  at  the  parish  of  Lyme  Regis,  in  the  county  of  Dorset,  our 
said  late  sovereign  by  his  certain  letters  patent  duly  sealed  in  tliat  behalf, 
after  reciting  as  thei-ein  was  recited,  did  for  himself,  liis  heirs  and  suc- 
cessors (amongst  other  things)  give,  grant,  and  confirm  to  the  maj'or 
and  burgesses  of  Lyme  Regis  aforesaid,  and  their  successors,  the  bo- 
rough or  town  of  Lj'me  Regis;  and  also  all  that  the  building  called  the 
pier,  quay,  or  cob,  of  Lyme  Regis;  with  all  and  singular  the  liberties, 
privileges,  profits,  franchises,  and  immunities  to  the  same  town  or  to 
the  same  pier,  qua}^,  or  cob  in  anywise  howsoever  belonging  or  apper- 
taining; to  have,  hold,  and  enjoy  the  aforesaid  borough  or  town,  and 
also  all  that  the  building  aforesaid,  called  the  pier,  quay,  or  cobof  Lyme 
Regis,  with  all  and  singular  the  liberties,  franchises,  privileges,  and 
immunities,  to  the  aforesaid  mayor  and  burgesses  of  the  borough  afore- 
said, and  their  successors,  to  the  only  and  proper  use  and  behoof  of  them 
the  same  mayor  and  burgesses  of  the  borough  aforesaid,  and  their  suc- 
cessors, in  fee  farm  for  ever;  yielding  of  fee  farm  to  our  said  late  King 
Charles  I.  his  heirs  and  successors,  of  and  for  the  aforesaid  borough  or 
town,  with  its  liberties  and  franchises,  as  in  the  said  letters  patent  in 
that  behalf  mentioned;  and  our  said  late  sovereign  King  Charles  L  did 
further  of  his  abundant  special  grace,  and  of  his  special  knowledge  and 
mere  motion,  for  himself,  his  heirs,  and  successors,  pardon,  remise,  and 
release  to  the  same  mayor  and  burgesses  of  the  borough  or  town  afore- 
said, and  their  successors  for  ever,  twenty-seven  marks,  parcel  of  thir- 
ty-two marks  of  the  farm  of  the  same  borough  and  the  liberties  thereof, 
anciently  by  letters  patent  or  in  any  other  manner  due;  and  did  direct 
that  the  aforesaid  mayor  and  burgesses  of  tlie  borough  of  liyme  afore- 
said, and  their  successors,  all  antl  singular  the  buildings,   banks,    sea 
shores,  and  all  other  mounds  and  ditches  within  the  aforesaid  borough  of 
J^yme,  or  to  the  aforesaid  borough  in  anywise  belonging  or  ajipertaining 
or  situate  between  the  same  borough  and  the  sea,  and  also  the  said  build- 
ing there  called  the  pier,  quay,  or  the  cob,  at  their  own  costs  and  ex- 
penses thenceforth  from  lime  to  time  for  ever,  should  well  and  suffi- 
ciently repair,  maintain,  and  support  as  often  as  it  should  be  necessary 
or  expedient:  and   further,   did   grant  to  the  afi)resaid   mayor  and   bur- 
gesses of  the  borough  aforesaid,  and  their  successors,  that  the  mayor  of 
the  same  borough  for  the  time  Ijeing  for  ever  thereafter,  should  be  clerk 
of  the  market  within  the  borough  or  town  aforesaid,  and  the  lil)erties 
and  precincts  of  the  same;  and  that  the  mayor  of  the  borough  aforesaid 
for  the  time  being  should  do  and  execute,  and  might  an<l  should  be  able 
to  do  and  execute  there  for  ever  all  and  whatsoever  to  the  olliceof  clerk 
of  the  market  of  our  said  late  King  ('h.nrles  the  First's  household  there 
pertained  to  be  done  and   performed,   so  ncverthelfss  thiit  the  clerk  of 
the  market  of  our  said  late  King  ('hailcs  the  First's  lionsfthold   for  the 
time  being,  together  willi  the  aforesaid  mayor  for  tin;  lime  bein^,  might 
exercise  the  olVice  above  said,  and  inliomit  when  he  woidd  to  do  any  thing 
which  pertainc'l  to  the  on^e  of  flerk  of  t!u;  mirkel  lliere  in  tiio  borough 

VOL.    XV.  '\^ 


37S  llt^LY  t;.  ThbMayok  of  Ltmk.  T.  T.  1828. 

aforesaid,  ami  tlie  liberties  and  precincts  of  the  same:  and  further,  our 
said  late  King  Charles  the  First  for  himself  and  his  heirs  and  successors, 
did,  by  his  said  letters  patent,  give  and  grant  to  the  said  mayor  and  bur- 
gesses of  the  borough  and  town  aforesaid,  and  their  successors,  all  and 
singular  the  fines,   amerciaments,  and  sums  of  money  before  the  said 
clerk  of  the  market  of  the  town  or  borough  aforesaid,  or  the  clerk  of 
the  market  of  the  said  late  King  Charles  the  First,  or  his  deputy,  by 
either  or  any  of  the  inhabitants  of  the  borough  or  town  aforesaid,  after 
the  date  and  making  of  said  letters  patent  forfeited  or  thereafter  to  be 
forfeited  and  assessed  in  the  same  borough,  to  have  and  enjoy  to  the  same 
mayor  and  burgesses  of  the  borough  aforesaid,  and  their  successors,  to  the 
useoftheaforesaid  mayor  and  burgcssesand  theirsucccssorsfor  ever,of  the 
said  late  KingCharlcsthe  First's  gift,  without  account  or  any  other  thing 
for  the  same  to  our  said  late  King  Charles  the  First,  his  heirs  orsuccessors, 
in  anywise  howsoever  to  be  rendered  or  paid,  and  to  be  levied  by  their 
own  servants  and  ministers  without  estreats  thereof  to  be  sent  to  the  ex- 
chequer of  our  said  late  King  Charles  the  First:  and,  moreover,  of  his 
more  ample  special  grace,  and  of  his  certain  knowledge  and  mere  mo- 
tion, our  said  late  King  Charles  the  First  did  will  and  by  letters  patent 
did  for  himself,  his  heirs  and  successors,  give  and  grant  to  the  said  mayor 
and  burgesses  of  the  borough  aforesaid,  and  their  successors,  full  power, 
authority,  and  licence  from  time  to  time  for  ever  to  dig  stones  and  rocks 
in  any  places  whatsoever  within  the  borough  and  parish  of  the  town 
aforesaid,  out  of  the  sea  and  on  the  sea  shore  in  the  borough  and  parish 
aforesaid,  adjoining  to  the  said  borough  or  town,  for  the  reparation  and 
amendmentof  theportand  building  aforesaid, called  the  pier,  quay, or  cob, 
and  other  necessary  reparations  and  common  works  of  the  same  town  and 
borough,  and  belonging  and  appertaining  to  the  building  aforesaid:  and 
our  said  late  King  Charles  the  First  did  also  by  his  said  letters  patent 
will  and  grant  to  the  aforesaid   mayor  and  burgesses  of  the  borough 
aforesaid,  and  their  successors,  that  the  same  mayor  and  burgesses  and 
their  successors  should  have,  hold,  use,  and  enjoy,  and  might  and  should 
be  able  fully,  freely,  and  entirely  to  have,  hold,  use,  and  enjoy  for  ever 
all  the  liberties,  free  customs,  privileges,  authorities,  acquittances,  and 
licences  aforesaid,  according  to  the  tenor  and  effect  of  said  letters  patent, 
without  the  let  or  impediment  of  said  late  King  Charles  the  First,  his 
heirs  or  successors  whomsoever,  our  said   late  King  Charles  the  First 
willing  not  that  the  same  mayor  and  burgesses  and  inhabitants  of  the 
borough  or  town  aforesaid,  or  either  or  any  of  them,  by  reason  of  the 
premises  or  either  or  any  of  them,  should  be  thereof  hindered,  molest- 
ed, aggrieved,  or  vexed,  or  in  any  thing  disturbed  by  him  the  said  late 
King  Charles  the  First,  or  his  heirs,  or  by  his  or  their  justices,  sheriffs, 
escheators,  or  other  the  bailiffs  or  ministers  of  the  said  late  King  Charles 
the  First,  his  heirs  orsuccessors  whomsoever:   which  said  letters  patent 
the  mayor  and  burgesses  of  the  borough  aforesaid,  afterwards,  to  wit, 
on  the  same  day,  &c.  to  wit,  at,  &c.  duly  accepted,  and  the  same  thence 
hitherto  have  been  and  still  are  one  of  the  governing  charters  of  the 
said  borough,  to  wit,  at,  &c.    And  plaintiff  further  said,  that  said  mayor 
and  burgesses  from  the  lime  of  their  acceptance  of  the  said  letters  patent 
hitherto  have  had,  held,  received,  and  enjoyed  all  the  benefits,  profits, 
and  advantages  granted  to  them  by  such  letters  patent  as  aforesaid: 

That  before  and  at  the  time  of  the  committing  of  the  grievances  by 
defendants  as  thereinafter  next  mentioned,  plaintiff"  was  lawfully  pos- 


5  BiN'GiiAM,  91.  379 

sessed  of  and  in  divers,  to  wit,  five  messuages,  five  cottages,  five  build- 
ings, and  divers,  to  wit,  twenty  closes  of  land  with  the  appurtenances, 
situate  and  being  in  the  county  aforesaid,  to  wit,  in  the  borough  afore- 
said : 

That  before  and  at  the  time  of  committing  of  the  grievances  by  defen- 
dants as  thereinafter  next  mentioned,  divers,  to  wit,  five  other  messu- 
ages, five  other  cottages,  five  other  buildings,  and  divers,  to  wit,  twenty 
closes  of  other  land,  with  the  appurtenances,  situate  and  being  in  the 
county  aforesaid,  to  wit,  in  the  borough  aforesaid,  were  in  the  possession 
and  occupation  of  divers  persons  as  tenants  thereof  respectively  to  plain- 
tiff, the  reversion  thereof  then  and  still  belonging  to  plaintiff,  to  wit, 
at,  &c. : 

All  which  said  several  messuages,  cottages,  buildings,  and  closes  of 
land,  with  the  appurtenances,  before  and  at  the  time  of  the  committing 
the  several  grievances  by  defendants  as  thereinafter  next  mentioned,  were 
abutting  on  or  near  the  seashore  there,  to.  wit,  &c.: 

That  before  and  at  the  time  of  the  sealing  of  said  letters  patent,  and 
the  acceptance  thereof  as  aforesaid,  by  said  mayor  and  burgesses,  and 
also  at  the  time  of  the  committing  of  the  several  grievances  by  defen- 
dants as  thereinafter  next  mentioned,  divers,  to  wit,  ten  buildings,  ten 
banks,  ten  sea  shores,  and  ten  mounds,  had  been,  and  were  then  re- 
spectively standing  and  being  within  the  borough  of  Lyme  Regis  afore- 
said, and  divers,  to  wit,  ten  other  buildings,  ten  other  banks,  ten  other 
sea  shores,  and  ten  other  mounds,  had  been,  and  respectively  were  be- 
longing and  appertaining  to  said  borough;  and  divers,  to  wit,  ten  other 
buildings,  ten  other  banks,  ten  other  sea  shores,  and  ten  other  mounds, 
liad  been  and  were  at  those  times  respectively  standing  and  being  and 
situate  between  said  borough  and  the  sea,  to  wit,  in  the  borough  afore- 
said; all  which  said  buildings,  banks,  and  sea  shores,  and  mounds  re- 
spectively, at  the  times  of  the  committing  of  tlie  several  grievances  by 
the  defendants,  as  thereinafter  next  mentioned,  were  near  to,  and  then 
and  there  constituted  and  formed  and  were  a  protection  and  safe-guard, 
and  still  of  right  ought  to  form  and  be  a  protection  and  safe-guard  to  the 
said  several  messuages,  cottages,  buildings,  and  closes  of  land  of  the 
plaintiff,  with  the  appurtenances  aforesaid,  and  then  and  there  have  hin- 
dered and  prevented,  and  still  of  right  ought  to  hinder  and  prevent,  the 
sea,  and  the  waves  and  waters  thereof,  from  running  or  flowing  on,  up- 
on, against,  or  over  said  several  messuages,  cottages,  buildings,  and  closes 
of  land  last  aforesaid:  and  all  which  buihlings,  banks,  sea  shores,  and 
mounds,  defendants,  at  the  times  of  the  committing  of  the  several  griev- 
ances by  them  as  thereinafter  next  mentioned,  were,  under  and  by  vir- 
tue, and  in  pursuance  of  the  aforesaid  letters  patent,  and  the  acceptance 
thereof  as  aforesaid,  liable  to,  and  ought,  at  their  own  proper  costs  and 
charges,  well  and  sufliciently  to  have  repaired,  maintained,  and  support- 
ed, and  still  are  liable  to,  and  ought,  at  their  own  proper  costs  and  charg- 
es, well  and  sunicienlly  to  repair,  maintain,  and  sui)port,  when  and  so 
often  as  it  should  or  might  have  been,  or  shall  or  may  he  necessary  or 
expedient  so  to  do,  so  as  to  prevent  damage  or  injury  to  said  messuages, 
cottages,  buildings,  and  closes  of  plaintill",  by  the  sea,  or  the  waves,  or 
waters  thereof,  to  wit,  at,  &c.  Yet  defendants,  well  knowing  the  premis- 
es, and  nor  regarding  the  said  letters  patent,  or  their  duly  in  that  behalf, 
but  contriving  and  wrongfidly  and  unjustly  intending  to  injure,  preju- 
•dire,  and  nggricvc  thp  plaintiff,  and  to  drprive  him  of  fh«  u^f  and  ben«- 


380  Hknly  r.  Thk  Mayor  or  Lyme.  T.  T.  1828. 

fit  of  Ills  several  messuages,  collages,  buiklings,  and  closes  first  above 
mciilioneii,  and  also  to  injure,  prejudice,  and  aggrieve  him,  plaintiff,  in 
liis  reversionary  interest  of  antl  in  said  messuages,  collages,  buildings, 
and  closes  secondly  above  mentioned,  so  being  in  the  possession  and  oc- 
cupation of  the  said  persons  as  tenants  thereof  to  him  the  plaintiff  as 
aforesaid,  and  in  which  he,  plaintiff,  was  so  interested  as  aforesaid,  there- 
tofore, to  wit,  on  the  1st  January  1S21,  and  from  thence  for  along  space 
of  time,  to  wit,  continually,  until  the  commencement  of  this  suit,  to  wit, 
at,  &c.,  wrongfully  and  unjustly  suffered  and  permitted  the  said  build- 
ings, banks,  sea  shores,  and  mounds,  to  be  and  continue,  and  the  same 
during  all  the  time  aforesaid  were  ruinous,  prostrate,  fallen  down,  wash- 
ed down,  out  of  repair,  and   in  great  decay,  for  want  of  due,  needful, 
proper,  and  necessary  repairing,  maintaining,  and  supporting  the  same, 
to  wit,  at,  &c.,  by  means  of  which  said  several  premises  the  sea,  and  the 
waves,  and  waters  thereof,  afterwards,  to  wit,  on  the  same  1st  January 
1821,  and  on  divers  other  days  and  times  between  that  day  and  the  com- 
mencement of  this  sui^,  to  wit,  at,  &c.,  ran  and  flowed  with  great  force 
and  violence  in,  upon,  under,  over,  and  against  said  several  messuages, 
cottages,  buildings,  and  closes  of  plaintiff,  and  in  which  he  was  so  inter- 
ested as  aforesaid,  and  thereby  then  and  there  greatly  inundated,  damag- 
ed, injured,  undermined,  washed  down,  beat  down,  prostrated,  levelled, 
and  destroyed  the  said  several  messuages,  cottages,  and   buildings,  and 
the  materials  of  the  same  messuages,  cottages,  and  buildings,  together 
with  divers,  to  wit,  ten  thousand  carts  load  of  the  earth  and  soil;  and  di- 
vers, to  wit,  five  acres  of  the  said  several  closes  were  washed  and  carried 
away,  to  wit,  at,  &.c.    By  means  of  which  said  several  premises,  plain- 
tiff not  only  lost  and  was  deprived  of  the  use,  benefit,  and  enjoyment  of 
iiis  said  messuages,  cottages,  buildings,  and  closes  in  that  count  first 
above  mentioned,  but  was  also  thereby  then  and  there  greatly  injured, 
prejudiced,  and  aggrieved  in  his  reversionary  estate  and  interest  of  and 
in  said   several  messuages,  cottages,  buildings,  and  closes  in  that  count 
secondly  above  mentioned,  so  being  in  the  possession  and  occupation  of 
said  persons  as  tenants  thereof  to  plaintiff  as  aforesaid,  and  in  which 
plaintiff  was  so  interested  as  aforesaid;  and  plaintiff  had  been  and  was, 
by  means  of  the  premises  aforesaid,  otherwise  greatly  injured  and  dam- 
nified, to  wit,  at,  &c. 

The  second  count  stated, — that  Charles  the  First,  by  his  letters  patent, 
<'after  reciting  as  therein  is  recited,  and  after,  among  other  things,  giving 
and  granting  to  the  mayor  and  burgesses  of  the  said  borough  certain  pri- 
vileges and  advantages,  did  direct  that  tlie  said  mayor  and  burgesses  and 
their  successors  should  from  time  to  time  for  ever,  when  it  was  neces- 
sary or  expedient,  repair  at  their  own  costs,  all  the  buildings,  banks,  sea 
shores,  and  other  mounds  to  the  borough  belonging  or  appertaining,  or 
situate  between  the  borough  and  the  sea;  which  said  last-mentioned  let- 
ters patent,  the  said  defendants,  afterwards,  to  wit,  on,  &c.  at,  &c.  duly 
accepted:  that  the  jiiaintiff  before  and  at  the  time  of  the  committing  of 
the  grievances  by  the  defendants,  as  thereinafter  mentioned,  was  lawful- 
ly possessed  of  divers,  to  wit,  five  other  messuages,  &c.  and  divers,  to 
wit,  five  other  messuages,  &c.  were  in  the  possession  of  tenants  to  the 
plaintiff,  the  reversion  thereof  being  in  the  plaintiff,  all  which  messuages, 
&c.  were  abutting  on  or  near  the  sea  shore," — and  then  proceeded  near- 
ly verbatim  as  in  the  first  count. 

The  remaining  counts,  on  which  a  verdict  was  taken  for  the  defen- 
dants, alleged  the  liability  to  repair  as  accruing  ratione  tenurse. 


5  Bingham,  91.  381 

Merewether  Scrjt.  moved  for  a  rule  calling  on  the  plainlift  to  slicvv 
cause  why  the  judgment  should  not  be  arrested  on  the  two  first  counts, 
chiefly  on  the  ground  that  the  defendants'  obligation  to  repair  the  sea 
wails  being  imposed  by  the  letters  patent  of  Charles  the  First,  the  crown 
alone  could  take  advantage  of  a  breach  of  the  conditions  of  that  instru- 
ment. That  the  plaintiQ",  a  mere  stranger  to  the  deed,  could  claim  no 
right  under  it.  That,  although  an  individual  might  sue  a  public  officer 
for  the  neglect  of  a  duty  the  performance  of  which  the  individual  might 
claim  of  common  right  without  any  grant,  yet  that  where  a  person  could 
never  have  obtained  a  given  benefit,  except  as  resulting  incidentally 
from  a  contract  between  the  crown  and  its  grantee,  the  loss  of  that  bene- 
fit was  not  a  wrong  for  which  he  could  claim  any  redress  by  action. 

A  rule  nisi  having  been  granted, 

TVilde  Serjt.  shewed  cause.  The  defendants,  by  the  acceptance  of 
the  grant  from  the  crown,  upon  condition  of  keeping  up  the  sea  walls, 
and  also  as  owners  and  occupiers  of  the  soil,  as  alleged  in  the  first  count 
of  the  declaration,  are  liable,  ratione  tenurae,  to  repair  those  walls; 
and  any  individual  who  suffers  by  their  neglect  is  entitled  to  sue  them  for 
damages,  Rex  v.  Kennson,  3  M.  &  S.  526.  Russell  v.  The  Men  of  De- 
von, 2  T.  R.  667.  Popham  v.  7'Ae  P;vo;-  of  Breamore,  11  H.  4.  82, 
S3.  Sleinsonv.  Heath,  3  Lev.  400.  1  Roll.  Abr.  104.pl.  1,  2.  11  H. 
4.  82,  83.  Com.  Dig.,  Action  on  the  case  for  Negligence,  A.  3.  Yield- 
ing v.  Fay,  Cro.  Eliz.  569.  11  H.  7.  fol.  12.  pi.  3.  12  H.  7.  fol.  IS. 
Callis,  118.  The  Mayor  of  Lynn  v.  Turner,  Cowp.  87.  Greasly  v. 
Codling,  2  Bingh.  263.  Feter  v.  Kendal,  6  B.  &  C.  703.  Fuyne  v. 
Rogers,  2  H.  Bi.  349.  Callis,  115.  Charnley  v.  Winstanley,  5  East, 
266.  Ferreau  v.  Bevan,  5  B.  &  C.  284. 

Taddy  and  Mcrewether  Serjts.  in  support  of  the  rule,  referred  to 
Rex  V.  Great  Broughton,  5  Burr.  2702;  Rex  v.  Sheffield,  2  T.  R.  Ill ; 
Star  V.  Rookesby,  Salk.  335;  Rex  v.  Mayor  of  Stratford,  14  East,  348; 
Rex  V.  Kerrison,  1  M.  &  S.  435;  2  Inst.  219.  c.  31;  Rex  v.  The  Earl 
of  Exeter,  6  T.  R.  373;  Rose  v.  Miles,  4  M.  &  S.  101;  Callis,  115; 
Keighly's  case,  10  Rep.  139;   1  Roll.  Abr,  Condition,  p.  407.  1.  30. 

Cj(r.  adv.  vult. 

Bkst  C.  J.  It  appears  by  the  first  count  of  the  declaration  in  this 
case,  that  the  defendants  arc  the  grantees  of  the  borough  of  Lyme,  and 
of  the  market,  and  of  certain  tolls  and  ilucs  arising  from  the  possession 
of  a  pier  or  cob;  and  it  appears  by  a  public  act  of  j)arliament  relating 
to  the  borough  of  Lyme,  that  these  tolls  and  dues  the  corjioration  of 
Lyme  have  had  from  all  time,  at  least  as  far  as  legal  memory  can  go; 
but  a  verdict  has  been  found  for  the  defendants  on  all  the  counts  which 
charge  them  with  being  liable  to  rc])air  ratione  tenure;  and  a  verdict 
lias  been  found  for  the  plaintifi  only  upon  two  counts,  one  of  which 
charges  that  these  tolls  (which  it  a|)pcars  from  the  declaration  were  in 
the  crown  before  the  granting  of  the  last  charter,  and  had  been  granted 
before  to  the  town  of  Lyme  on  difierent  terms,)  were  in  the  time  of  Charles 
the  First  granted  to  the  town  of  Lyme,  together  with  the  borough,  the 
right  of  digging  stones  upon  the  shore,  and  certain  other  rights  which  it 
is  unnecessary  to  enumerate;  and  then  cotnes  that  on  which  this  fiueslion 
arises,  and  which  is  the  condition  on  whicli  the  grant  was  jnade:  *'That 
the  corporation  of  [>yme  and  their  successors,  all  and  singular  the  build- 
ings, banks,  sea-shores,  and  all  other  mounds  and  ditches  within  the 
aforesaid  borough  of  Lyme,  or  to  the  aforesaid  borough  in  anywise  be- 


382         Henlv  v.  The  Mayor  of  Lyme.  T.  T.  1828. 

longing  or  appcrlainlng,  or  situate  between  tlie  same  borough  and  the 
sea,  and  also  the  said  building  then  called  the  pier,  quay,  or  the  cob,  at 
their  own  costs  and  expenses,  thenceforth  from  time  to  time  for  ever 
shouUl  well  and  sulliciently  repair,  maintain,  and  support  as  often  as  it 
should  be  necessary  or  expedient:"  then  it  is  stated  *<  that  before  the 
committing  of  the  grievances  in  question,  divers  messuages  and  cottages, 
and  buiklings,  and  divers  closes  of  land,  with  the  appurtenances  in  the 
borough  aforesaid,  were  in  the  possession  and  occupation  of  divers  per- 
sons, as  tenants  thereof  resj^ectively  to  the  plaintiff,  the  reversion  thereof 
then  and  still  belonging  to  the  plaintiff;  all  which  said  several  messuages, 
cottages,  buildings,  and  closes  of  land,  with  the  appurtenances,  before 
and  at  the  times  of  the  committing  of  the  several  grievances  by  the  said 
defendants,  were  abutting  on  or  near  the  sea-shore  there:  that  before  and 
at  the  time  of  sealing  of  the  said  letters  patent,  and  acceptance  thereof 
as  aforesaid  by  the  said  mayor  and  burgesses,  and  also  at  the  time  of  the 
committing  the  several  grievances," — so  that  this  allegation  relates  not 
only  as  it  was  supposed  at  the  bar,  to  the  time  of  committing  the  griev- 
ances, but  to  the  time  of  granting  the  letters  patent, — "as  well  divers 
buildings,  banks,  sea-shores,  and  mounds  had  been  and  were  respectively 
standing  and  being  within  the  borough  of  Lyme  Regis  aforesaid,  and 
were  belonging  and  appertaining  to  the  said  borough,  and  divers  other 
buildings,  &c.  situate  and  between  the  said  borough  and  the  sea-shore, 
then  and  there  constituted  and  formed,  and  were  a  protection  and  safe- 
guard," that  is,  at  the  time  of  the  letters  patent,  "and  still  of  right 
ought  to  form  and  be  a  protection  and  safeguard  to  the  messuages,  cot- 
tages, buildings,  and  closes  of  land,  with  the  appurtenances,  and  then 
and  there  to  have  hindered  and  prevented,  and  still  of  right  ought  to 
hinder  and  prevent  the  sea,  and  the  waves  and  waters  thereof,  from  run- 
ning or  flowing  in,  upon,  against,  or  over  the  said  several  messuages, 
cottages,  buildings,  and  closes  of  land  aforesaid:  all  which  buildings, 
banks,  sea-shores,  and  mounds  the  said  defendants  at  the  times  of  the 
committing  the  grievance  were,  under  and  by  virtue  and  in  pursu- 
ance of  the  letters  patent,  and  the  acceptance  thereof,  liable,  and  at, 
their  own  proper  costs  and  charges,  sufficiently  to  repair."  Then  the 
first  count  goes  on  to  state  that,  in  breach  of  this  duty,  they  permitted 
these  sea-banks,  sea-walls,  mounds,  &c.  to  be  prostrate,  ruinous,  and 
decayed,  so  that  the  sea  came  in  and  overran  the  ground,  and  overran 
the  cottages  which  were  standing  on  the  ground,  and  did  the  mischief 
which  is  the  subject  of  complaint. 

Now  it  has  been  insisted,  in  the  first  place,  that  the  plaintiff  claims  a 
degree  of  protection  which  the  charter  does  not  give  him.  1  think  there 
is  no  foundation  for  that  argument;  for  the  charter  was  given  expressly 
for  the  purpose  of  protecting  the  land,  and  the  walls  which  the  corpora- 
tion were  to  keep  up  for  that  purpose,  have  been  suffered  to  become  in 
such  a  state  of  ruin,  that  they  are  incapable  of  protecting  the  land,  and 
consequently  the  houses  put  on  the  land  have  suffered:  the  plaintiff, 
therefore,  does  not  make  a  larger  claim  to  protection  than  he  is  war- 
ranted to  make  under  the  grant,  provided  he  is  entitled  to  any  protection 
under  that  grant. 

It  is  next  insisted,  the  crown  probably  might  have  a  right  to  complain, 
but  that  an  individual  cannot  maintain  an  action  for  any  injury  he  has 
sustained  from  the  corporation  of  Lyme  not  having  fulfilled  the  trusts 
which  the  crown  reposed  in  them  at  the  time  of  the  granting  this  borough; 


5  Bingham,  91.  383 

or,  rather,  not  having  executed  the  duty  which  was  the  consideration  of 
the  grant. 

Now  I  take  it  to  be  perfectly  clear,  that  if  a  public  officer  abuses  his 
office,  either  by  an  act  of  omission  or  commission,  and  the  consequence 
of  that,  is  an  injury  to  an  individual,  an  action  may  be  maintained  against 
such  public  officer.  The  instances  of  this  are  so  numerous,  that  it 
would  be  a  waste  of  time  to  refer  to  them. 

Then,  what  constitutes  a  public  officer?  In  my  opinion,  every  one 
who  is  appointed  to  discharge  a  public  duty,  and  receives  a  compensa- 
tion in  whatever  shape,  whether  from  the  crown  or  otherwise,  is  con- 
stituted a  public  officer. 

Bishops,  certainly,  are  paid  by  the  crown,  not  in  money,  but  by  estates 
which  have  been  granted  to  them;  and  in  consequence  of  the  grant  of 
such  estates  certain  duties  have  been  imposed  on  the  bishops;  such,  for 
instance,  as  holding  ecclesiastical  courts.  Does  any  man  doubt,  if  a 
bishop,  by  neglect  to  hold  an  ecclesiastical  court,  prevents  an  individual 
from  obtaining  a  probate  of  a  will,  by  which  he  sustains  an  injury,  an 
action  might  bo  maintained  against  such  bishop  for  the  consequence  of 
that  neglect?  Clergymen  are  public  servants  to  a  certain  extent,  although 
undoubtedly  they  are  not  paid  by  the  public.  The  emoluments  which 
they  receive  have  not  been  derived  from  the  public;  they  have  been 
derived  from  the  owners  of  particular  lands,  who  have  endowed  them 
with  the  glebe  or  tithes  which  they  possess;  yet  they  have  duties  cast 
on  them  as  the  consequence  of  the  tenure  of  those  lands  and  tithes,  such 
as,  for  instance,  to  administer  the  sacrament;  and  it  has  been  decided, 
that  if  a  clergyman  refuse  to  administer  the  sacrament  to  a  man  who  is 
thereby  prejudiced  in  his  civil  rights,  an  action  is  maintainable  against 
the  clergyman.  So  if  a  clergyman  were  to  neglect  to  register  a  person 
brought  to  be  baptized,  and  in  consequence  of  that,  such  person  should 
lose  an  estate,  does  any  man  doubt  an  action  could  be  maintained  against 
him  ?  If  the  Hank  of  England  refuse  to  transfer  stock,  an  action  may 
be  maintained  against  them. 

Lords  of  manors  hold  courts,  which  courts  they  are  obliged  to  hold, 
as  one  of  the  considerations  on  which  the  lands  have  been  granted  to 
them.  If  a  lord  of  the  manor  were  to  refuse  or  neglect  to  hold  a  court, 
by  which  a  copyholder  should  be  prevented  from  having  admission  to 
his  copyhold,  does  any  man  doubt  an  action  could  be  maintained  against 
such  lord  ? 

It  seems  to  me  that  nil  these  cases  establish  the  principle,  that  if  a  man 
takes  a  reward, — whatever  be  the  nature  of  that  reward,  whether  it  be  in 
money  from  the  crown,  whether  it  he  in  land  from  the  crown,  whether  it 
he  in  lands  or  money  from  any  individual, — for  the  discharge  of  a  public 
duty,  that  instant  he  becomes  a  public  ollicer;  auflif  by  any  act  of  negligence 
or  any  act  of  abuse  in  bis  office,  any  individual  sustains  an  injury,  that  in- 
(liviflual  is  entitled  to  redress  in  a  civil  action.  If  that  he  so,  then  it  is  (piite 
clear  thrit  the  phiintid  in  this  case  is  entitled  to  mnintain  this  action.  The 
plaintiir  may  s.iy  to  tiie  corporation,  "you  have  a  comj)eiis:ilion  from  the 
crown  for  discharging  the  duly  which  you  have  negkrled  to  discharge; 
and  in  conserpiencc  of  that  ne^ject  I  have  sustained  an  injury;  I  am, 
therefore,  entitled  to  have  a  conif)en,sation  from  you." 

liut  it  has  been  argued,  thnt  this  only  applies  to  acts,  and  not  to  mere 
omission.  Thatargumenl  cannot  be  sustained,  because  in  the  case  which 
has  been  referred  to  from  Cowpcr,  the  thing  complained  of  was  a  mere 


384         Henly  v.  The  Mayor  of  Lyme.  T.  T.  1828. 

omission  or  negligence.  1  should  say,  therefore,  tliat  whether  the  King 
evci'  was  bound  to  keep  up  these  sea-walls  or  not,  the  King  having 
thouu;ht  proper  to  make  the  grant  for  the  benefit  of  the  public  (for  it 
cannot  be  supposed  that  the  King  made  this  grant,  that  the  good  men  of 
Lyme  should  expend  the  dues  so  granted  cither  for  their  individual  ad- 
vantage or  in  feasting),  the  instant  they  accepted  it  for  the  benefit  of  the 
public,  they  took  on  themselves  the  responsibility  of  discharging  those 
duties  to  the  public,  which  it  is  expressly  declared  they  were  to  dis- 
charge at  the  time  they  accepted  the  borough;  and  having  neglected 
them,  they  have  become  responsible.  That  would  be  my  opinion,  even 
if  I  should  be  satisfied  that  the  King  never  was  bound  to  repair  these 
walls;  but  I  am  convinced  that  the  King  was  bound  at  one  time  to  re- 
pair these  walls,  and  that  the  King  has  shifted  the  liability  which  be- 
longed to  him  upon  those  to  whom  he  has  granted  the  estate. 

Now  if  the  King  was  bound  to  repair  the  walls,  and  has  granted  an 
estate  to  a  person  on  condition  that  he  shall  do  it,  no  man  can  doubt 
that  this  is  a  binding  and  valid  condition.  A  man  who  is  bound  to  do 
certain  acts  by  reason  of  the  tenure  of  certain  property,  if  he  grants 
that  property,  or  any  part  of  it,  may  make  it  a  condition  of  his  grant 
or  his  lease  that  the  grantee  or  lessee  shall  do  that  which  he  was  bound 
to  do. 

I  do  not  mean  to  state  that  the  King,  by  his  general  prerogative,  was 
bound  out  of  any  funds  which  belong  to  him  to  repair  the  sea  wall.  He 
never  was  so  bound.  The  King  by  his  prerogative,  as  will  be  found  in 
every  book  on  the  prerogative  of  the  crown,  is  bound  to  take  care  to 
guard  and  to  protect  the  shores  and  lands  adjoining  the  sea  from  being 
overflowed  by  the  sea;  he  is  to  discharge  that  duty  as  it  was  discharged 
before  the  statute  of  Henry  the  Eighth,  by  issuing  commissions  and  ma- 
king ordinances,  which  we  find  he  certainly  was  in  the  habit  of  making 
before  the  statute  of  Henry  the  Eighth;  calling  on  persons  who  had 
lands  near  the  sea  to  do  their  duty  in  protecting  their  own  lands,  and 
the  lands  of  others,  from  the  incursions  of  the  sea.  But  it  appears  here 
that  the  King  was  the  owner  of  the  lands  of  the  town  of  Lyme;  for  it 
appears  on  this  record,  that  the  King  granted  the  borough  of  Lyme: 
then  although  the  King  might  not  have  all  the  demesne  lands  in  the 
town  of  Lyme  at  the  time  of  the  grant,  yet  there  is  ground  to  presume 
that  the  King,  at  some  time,  was  owner  of  all  the  land  in  the  town  of 
Lyme;  for  the  Court  of  King's  Bench  held,  in  the  case  of  Lord  Pelham 
v.  Pickersgill,  1  T.  R,  C60,  if  you  shew  that  a  party  is  lord  of  a 
manor,  you  may  upon  tliat  raise  the  presumption  that  at  some  time  or 
other  he,  or  his  ancestors,  were  in  possession  of  all  the  demesnes 
of  the  manor,  because  the  legal  history  of  this  country  shews  that  origi- 
nally all  the  land  belonged  to  the  lord  of  the  manor,  and  was  granted 
out  to  the  tenants  on  different  conditions  and  on  different  services. 
Proving,  therefore,  that  a  man  is  lord  of  the  manor  is  sufficient  to  raise 
the  presumption  that  in  ancient  times  he  was  the  owner  of  all  the  lands 
wiUiin  the  manor.  If  that  be  the  case,  if  the  King  was  lord  of  the 
manor,  if  the  King  could  grant  the  borough,  if  the  King  could  grant  the 
sea  shore,  that  is  ground  on  which  we  will  presume,  without  its  being 
stated  on  the  record,  because  it  is  a  legal  presumption,  that  the  King 
was  at  one  time  the  owner  of  all  the  lands  vvitiiin  the  town  of  Lyme. 
If  he  was  owner  of  all  the  lands  within  the  town  of  Lyme,  was  it  not 
his  duty  at  that  time  fo  rppair  the  sea  banks?     We  find  from  Callis  that 


5  Bingham,  91.  383 

it  nras  the  duty  of  the  King  at  common  law  to  protect  the  shores  from  the 
incursions  of  the  water;  but  that  it  became  necessary,  in  consequence  of 
the  sea  gaining  on  particukir  parts  of  tl)je  shore,  to  have  higher  mounds 
and  higher  banks  than  particular  individuals  were  bound  to  put;  and, 
therefore,  it  was  necessary  to  raise  such  mounds  and  banks  by  taxation 
of  other  parts  of  the  public  who  derived  benefit  from  those  walls:  but 
who  in  the  first  instance  were  bound  to  repair?  who  were  bound  to 
keep  up  the  sea  banks?  The  owners  of  the  banks.  And  who  were 
bound  to  keep  up  the  sea  walls?  Those  who  had  been  in  the  habit  of 
keeping  up  and  repairing  them.  According  to  Callis,  115,  "■  Frontage 
is,  when  the  ground  of  any  man  do  join  with  the  brow  or  front  thereof 
to  the  sea,  or  to  great  or  royal  streams;  and  in  cases  of  the  sea  or  royal 
rivers,  property  of  the  banks  and  grounds  adjoining  are  and  belong  to 
the  subject  when  lands  do  but  and  bound  thereon;  but  the  soil  of  the 
sea  and  royal  rivers  do  appertain  to  the  King,  as  formerly  in  my  tractate 
on  rivers  may  appear.  But  in  cases  of  petty  and  mean  rivers,  the  soil 
of  them,  as  well  as  the  banks  thereon,  do  appertain  to  them  whose 
grounds  adjoin  thereto;  so  that  frontage  and  ownership  in  base  inferior 
rivers  do  not  differ;  but  in  great  streams  and  the  sea  they  do  vary  as 
aforesaid:  and  it  seems  that  the  iVontagcs  are  bound  to  the  repairs,  and 
that  he  whose  grounds  are  next  adjoining  to  a  highway,  is  bound  to  re- 
pair the  same."  It  was  objected  that  that  was  stated  too  largely;  and, 
certainly,  if  it  be  taken  that  the  owner  of  the  lands  adjoining  every 
highway  is  bound  to  repair  the  highway,  it  is  too  large:  but  I  apprehend, 
the  writer  means,  that  where  a  man  has  enclosed  on  the  highway,  he  is 
bound  to  repair.  Then  he  adds:  "The  ownership  of  a  bank,  wall,  or 
other  defence  is  a  suflicient  warrant  to  impose  the  charge  of  repairs 
thereof  upon  him,  without  being  tied  thereto  by  prescription." 

If  that  be  so,  how  stands  this  case?  The  King  grants  this  bank  or 
wall;  must  he  not  have  been  the  owner?  If  he  was  not,  he  could  not 
make  the  grant.  Then,  if  he  was  the  owner  of  banks  or  walls,  we  have 
it  here,  on  the  authority  of  Callis,  that  he,  as  owner  of  them,  was  bound 
to  repair.  If,  as  the  owner  of  the  banks  or  walls,  he  was  bound  to  re- 
pair, without  any  prescription,  when  he  made  the  grant,  could  he  not 
cast  the  obligation  on  another?  It  seems  to  me  it  is  perfectly  clear,  from 
what  is  stated  on  the  record,  that  the  King  was  bound,  as  owner  of 
the  town  of  Lyme  Regis,  which,  proljai)ly,  was  so  called  from  the  pro- 
perty of  the  town  being  in  him,  and  as  the  owner  of  these  very  banks 
and  walls,  to  repair  these  banks  and  walls.  When  he  granted  to  the 
corporation  of  Lyme  the  profit  and  advantage  of  the  tolls,  he  transferred 
to  them,  at  the  same  time,  the  liability  which  the  receipt  of  that  profit 
and  advantage  imposed  on  him. 

I  am,  therefore,  of  ojjinion,  that  it  sufiiciently  appears  on  this  record, 
tint  the  defendants  were  l;ound  to  repair. 

Hut  it  has  been  said  it  does  not  npj)enr  that  they  hnve  any  funds  v/hcre- 
witli  to  do  it.  As  long  as  they  hold  this  estate,  whether  the  estate  pro- 
duces funds  or  not,  they  are  bounil  to  repair.  When  they  do  rot  like 
to  undertake  the  repair,  let  them  desire  the  King  to  lake  back  the  estate. 
The  moment  they  accepted  the  estate,  they  ronlraclcd  the  liability  to 
repair;  and  that  liabdity  to  repair  will  attach  itself  to  them  as  long  as 
they  continue  to  be  the  owners  of  the  estate. 

It  would  be  a  most  dangerous  thing  to  allow  a  corporation  which 
takes  lands  under  circumstances  in  which  thii  corporation   hns  taken 

VOL.    XV.  lU 


3SG         1Jem.y  v.  Tub  Mayor  or  Lyme.  T.  T.  1828. 

lands,  to  fay,  that  *' although  we  have  taken  these  lands  cum  onere, 
subject  to  these  repairs,  we  have  not  funds  wherewith  to  repair,  and, 
therefore,  we  cannot  do  it."  Ui  such  acase  the  Court  would  have  to 
go  into  an  enquiry  how  the  funds  had  been  employed,  and  it  would  be  ex- 
tremely improper  to  impose  the  necessity  of  such  an  enquiry  on  any 
court.  The  learned  Judge  who  tried  the  cause  did  perfectly  right  in 
rejecting  evidence  to  such  a  point.  The  public  have  nothing  to  do  with 
that.  The  plaintiffhas  nothing  to  do  with  that:  as  one  of  the  public, 
all  he  has  to  enquire  into  is,  who  are  liable  to  repair.  On  these  grounds, 
I  am  of  opinion  there  is  no  reason  for  arresting  the  judgment. 

I  had  omitted  to  mention  another  point.  It  is  alleged  that  the  de- 
fendants are  only  commonly  liable  to  repair  the  walls.  Undoubtedly 
tliat  is  all  they  are  bound  to  do.  In  a  case  which  I  tried  at  Gloucester, 
an  issue  was  directed  by  the  Court  of  Chancery,  to  ascertain  whether 
the  owners  of  land,  who  were  bound  to  keep  certain  sea  walls  in  re- 
pair, were  answerable  for  a  particular  loss  that  had  happened;  and  I 
was  directed  to  enquire  whether  that  loss  had  happened  in  consequence 
of  an  extraordinary  high  flood  of  the  sea,  or  in  consequence  of  those 
mounds  not  being  kept  in  proper  repair.  The  "jury  found  that  the 
mounds  were  kept  in  good  repair,  and  that  the  accident  had  happened 
from  such  a  high  tide  as  never  had  occurred  before  in  the  memory  of 
man.  I  should  say,  if  in  this  case  it  had  appeared  this  damage  had  not 
happened  from  any  defect  of  the  wall,  but  had  happened  from  an 
extraordinary  high  flood,  these  defendants  would  not  have  been  bound 
to  make  good  the  repairs;  but  it  was  decided  in  TAe  King  v.  T/ie 
Commissioners  of  Seiuers  for  Essex,  1  B.  &  C.  477,  that  if  a  man 
is  bound  to  repair  certain  walls,  although  the  flood  be  very  high, 
yet  if  it  be  found  that  the  walls  were  out  of  repair,  he  is  liable,  be- 
cause the  high  flood  would  probably  not  have  occasioned  the  mischief 
if  the  walls  had  been  in  the  state  he  was  bound  to  keep  them.  In  the 
present  case,  if  there  was  a  high  flood,  or  an  extraordinary  high  tide, 
it  was  matter  of  defence.  But  it  is  distinctly  stated  on  this  record  that 
the  mischief  happened  from  these  walls  being  suffered  to  be  prostrate, 
ruinous,  and  in  decay,  so  that  the  mischief  is  not  from  the  act  of  God, 
the  mischief  is  from  the  negligence  of  man,  and  from  the  negligence  of 
man  only. 

Gaselee  J.  It  has  been  argued,  that  the  obligation  is  laid  too  large- 
ly in  this  declaration;  but  by  analogy  to  the  case  of  a  common  carrier, 
this  is  stated  in  the  same  way;  there,  you  state  the  liability  of  the  com- 
mon carrier  to  carry  safely  and  securely,  and  you  do  not  except  the  act 
of  God  and  the  King's  enemies,  which  are  the  known  exceptions;  so 
here  it  is  properly  staled  to  be  a  general  obligation  to  repair:  if  by  the 
act  of  God  an  extraordinary  storm  comes,  that  is  a  defence,  and  it  is  not 
necessary  to  state  it  in  the  declaration. 

Rule  discharged. 
In  Michaelmas  term  an  application  was  made,  on  the  part  of  the 
plaintiff,  to  the  Chief  Justice  to  order  the  verdict  to  be  entered  up  on 
the  first  count  of  the  declaration,  to  which  the  foregoing  judgment  ap- 
pears chiefly,  if  not  exclusively,  to  apply.  The  parties  were  required 
to  make  their  application  to  Mr.  Justice  Littledale,  and  it  was  <<  order- 
ed that  all  further  proceedings  in  this  cause  be  suspended  until  this 
Court  shall  otherwise  order."  On  the  18th  December  Mr.  Justice 
Littledale^  after  hearing  both  sides,  declined  to  interfere,  on  the  ground 


5  BixGHAM,  114.  387 

that  the  verdict  had  heen  taken  in  the  present  form  before  the  cause  had 
been  heard  to  its  conclusion,  by  mutual  agreement,  and  that  he  couM 
not  alter  the  terms  of  that  agreement  when  either  of  tlie  parties  to  it 
objected  to  such  alteration. 


FURNESS,  Assignee  of  ALEXANDER  COPE  and  Others,  Bank- 
rupts, V.   WILLIAM  COPE.— p.  114. 

A  banker's  ledger  is  receivable  in  evidence  to  shew  that  a  customer  had  no  funds 
in  the  banker's  hands. 

This  was  an  action  of  assumpsit  to  recover  money  alleged  to  have 
been  paid  by  Alexander  Cope  to  the  defendant  under  a  fraudulent  pre- 
ference. 

In  order  to  shew  the  state  of  the  nfiairs  of  the  bankrupt  and  his  part- 
ners just  before  their  bankruptcy,  the  plaintiff  at  the  trial  before  Best 
C.  J.,  London  sittings  after  Easter  term,  produced  the  ledger  of  the 
bankers  with  whom  the  bankrupt  firm  kept  cash.  The  entries  in  this 
book  were  made  by  various  persons.  One  of  the  bankers'  clerks  stated 
that  that  was  the  book  to  which  all  the  clerks  of  the  house  referred,  to 
see  whether  they  should  pay  the  checks  of  their  customers  when  pre- 
sented; and  it  appeared  from  that  ledger  that  at  the  time  of  A.  Cope's 
bankruptcy,  his  firm  had  nothing  remaining  in  the  bankers'  hands.  It 
was  objected  that  this  book  was  not  evidence,  at  all  events,  as  against 
the  defendant,  and  that  the  clerks  who  made  the  several  entries  ought 
to  have  been  called.  The  objection,  however,  was  overruled,  and  a 
verdict  found  for  the  plaintiff. 

Upon  this  ground,  and  also  on  the  ground  that  the  verdict  was  con- 
trary to  evidence,  and  did  not  sustain  the  promises  as  laid  in  the  de- 
claration, 

Wilde  Serjt.  moved  for  a  new  trial;  against  which 

MerewetUer  Serjt.  sliewed  cause. 

It  appearing  tliat  the  evidence  was  not  very  clear,  the  Court  pro- 
nounced no  decision  on  the  objection  to  the  declaration,  but  granted  a 
new  trial,  in  order  tliat  the  question  might  be  more  distinctly  raised. 
Upon  the  suljject  of  the  bankers'  ledger,   however. 

Best  C.  J.  said,  that  it  was  properly  received  in  evidence,  and  that 
great  mischief  would  ensue  if  the  Court  were  to  hold  otherwise.  The 
inconvenience  of  calling  all  the  clerks  of  the  house  would  be  seriously 
felt,  and  without  the  book  it  would  be.  impossible  to  prove  that  the 
party  had  no  money  in  the  house.  To  prove  the  negative,  therefore,  the 
hook  to  which  all  referred,  was  sufficient,  although  it  might  not  bo  ad- 
missible to  prove  the  affirmative. 


(IN  THE  EXCHEQUER  CHAMBER  ) 

THORPE  V.  COOPER.— p.  lin. 

Where  commissioners  under  nn  inclosurc  nrt  of  1769  were  to  make  allotments  fa 
prrtonc  poBiesting  interesti  in   the    contiguous  townshi])!  A.,  H.,  and  C,  and 


38S  jACons  V.  Latour.  T.  T.  1828. 

made  allotments  to  a  rector  in  B.  and  C.  in  respect  of  tithes  and  glebe  to  which 
he  was  entitled  in  B.  and  C,  and  in  A.  in  respect  of  glebe  to  which  he  was  en- 
titled in  A, but  omitted  to  makeany  specific  allotment  in  A.  in  respect  of  tithes 
to  which  he  v.as  entitled  in  A.;  the  act  containing  a  saving  clause  for  all  per- 
sons other  than  those  to  whom  allotments  or  compensations  should  be  made  in 
respect  of  their  several  interests:  Held,  that  the  rector  was  not  barred  from 
Buing  for  his  tithes  in  A.  in  1825,  although  the  award  was  to  be  final  unless 
appealed  against  in  six  months. 


JACOBS,  Assignee  of  LAWTON,    a   Bankrupt,  v.   LATOUR  and 
MESSER.— p.  130. 

A  party,  who  having  a  lien  on  goods,  causes  them  to  be  taken  in  execution  at 
his  own  suit,  loses  his  lien  thereby,  although  the  goods  are  sold  to  him  under 
the  execution,  and  arc  never  removed  off  his  premises. 

Quxre,  Whether  a  trainer  of  race-horses  has  a  lien  on  the  horses  for  his  ser- 
vices in  ti-aining. 

Trover  for  the  conversion  of  certain  race-horses. 

At  the  trial  before  Burrough  J.,  last  Hertford  assizes,  it  appeared 
that  these  horses  had  been  placed  by  Lavvton  with  the  defendant  Mes- 
ser,  a  trainer,  and  were  by  him  kept  and  trained  for  running.  Lavvton 
being  indebted  to  Mcsscr  for  his  services  in  this  respect,  and  for  the 
keep  of  the  horses,  and  being  insolvent,  Messer  obtained  a  judgment 
against  him,  on  the  5th  of  May  1827,  for  227/.,  upon  which  he  issued 
a  fi.  fa.  on  the  16th  of  the  same  month,  returnable  on  the  23d.  The 
levy  was  made  on  the  16th,  and  under  it  the  horses  in  question,  which 
had  never  been  out  of  his  possession,  were  sold  to  Messer  for  156/. 

On  the  22d  of  May  1827  a  commission  of  bankrupt  having  issued 
against  Lawton,  upon  an  act  of  bankruptcy  committed  in  February 
1825,  the  plainliff",  as  his  assignee,  brouglit  this  action  to  recover  the 
value  of  the  before-mentioned  horses. 

It  was  contended,  on  the  part  of  the  defendants,  that  if  the  execu- 
tion would  not  avail  against  the  commission  of  bankrupt,  at  all  events 
the  defendant  Messer  had  a  lien  for  his  services  in  training  the  horses, 
which  entitled  him  to  keep  them  till  his  account  was  settled:  a  verdict, 
however,  was  found  for  the  plaintiff,  with  leave  for  the  defendants  to 
move  to  set  it  aside  on  this  ground,  and  enter  a  nonsuit  instead.  Ac- 
cordingly Wilde  Serjt.  obtained  a  rule  nisi  to  this  effect,  citing  Chase 
V.  Welmore,  5  M.  &:  S.  180. 

Andrewa  Serjt.  shewed  cause,  and   cited  Chapman  v.  Allen,  Cro, 

Car.  271;  Jones  v.  Pearl,  1  Str.  556. 

Wilde,  contra.  r<  j         it 

'  Cur.  adv.  vult. 

Best  C.  J.  This  was  an  action  of  trover  against  a  stable  keeper 
and  trainer,  to  recover  the  value  of  certain  horses  placed  with  him  for 
the  purpose  of  being  trained.  The  first  question  in  the  cause  is,  Whe- 
ther the  defenrlnnt  had  any  lien  on  the  horses;  and  the  second.  Whe- 
ther, if  he  had  a  lien,  it  was  destroyed  by  his  taking  the  horses  in  exe- 
cution. 

It  is  not  necessary  for  us  to  enter  on  the  first  question,  because  we 
are  of  opinion  that  if  lie  had  any  lien,  it  was  destroyed  by  the  executioti 
at  his  suit. 


5  BiXGiiAM,  130.  389 

A  lien  is  destroyed  if  the  party  entitled  to  it  gives  up  his  right  to  the 
possession- of  the  goods.  If  another  person  had  sued  out  execution, 
the  defendant  mip;ht  have  insisted  on  his  lien.  But  Messer  himself 
called  on  the  sheriff  to  sell;  be  set  up  no  lien  against  the  sale;  on  the 
contrary,  he  thought  his  best  title  was  by  virtue  of  that  sale.  Now, 
in  order  to  sell,  the  sheriff  must  have  bad  possession;  but  after  he  had 
possession  from  Messer,  and  with  bis  assent,  Messer's  subsequent  pos- 
session must  have  been  acquired  under  the  sale,  and  not  by  virtue  of 
his  lien. 

As  between  debtor  and  creditor  the  doctrine  of  lien  is  so  equitable 
that  it  cannot  be  favoured  too  much;  but  as  between  one  class  of  credi- 
tors and  another  there  is  not  the  same  reason  for  favour. 

Xlule  discharged. 


COLLINS  v.  PRICE— p.  132. 

A  child  at  school,  for  whom  payment  had  been  made  quarterly,  was  sent  home 
for  illness  four  days  after  the  commencement  of  a  quarter,  and  did  not  return  : 
Held,  that  the  master  was  entitled  to  a  whole  quarter's  schooling,  although 
there  was  no  express  contract  for  a  quarter's  notice  or  a  quarter's  pay,  and 
although  the  school  was  a  day-school,  at  which  the  child  was  the  only  boarder. 

Assumpsit,  by  a  schoolmaster,  to  recover  a  quarter's  board  for  a 
child  placed  under  his  care  by  the  defendant.  There  was  a  special  count 
in  the  declaration,  alleging  an  undertaking  to  pay  for  a  quarter,  or  give 
a  quarter's  notice,  in  consideration  of  the  plaintiff's  instruction;  and  a 
common  indebitatus  count  for  a  quarter's  tuition,  board,  &c.  Plea,  non 
assumpsit. 

At  the  trial  heiovc  Best  C.  J.,  Middlesex  sittings,  it  appeared  that 
the  plaintiff  kept  a  day-school,  hut  that  the  child  in  question  had  been 
placed  with  him  as  a  boarder,  and  was  the  only  boarder  he  had.  The 
plaintiff's  charges  for  the  cliild  had  always  been  sent  in  and  settled  quar- 
terly, up  to  the  Midsummer  holidays  1S27.  Upon  their  cx])iration  the 
child  was  sent  to  school  again,  but  after  four  days  was  taken  ill,  and  sent 
home  by  the  plaintiff  for  her  recovery.  The  defendant  never  sent  the 
child  back,  and  tlie  plaintiff  now  sued  to  recover  bis  charge  for  the  whole 
quarter.  Tiierc  was  a  set-off  proved  to  a  greater  amount  than  Jhc  va- 
lue of  the  four  days'  board. 

The  jury  found  a  verdict  for  the  whole  quarter,  leave  being  reserved 
to  the  defendant  to  move  to  set  it  aside,  and  enter  a  nonsuit  ou  the  ground 
that  there  was  no  agreement  to  pay  for  the  quarter. 

IVildc  Serjt.  having  obtained  a  rule  nisi  accordingly, 

Spankic  Serjt.  shewed  cause.  The  previous  payments  having  been 
quarterly,  there  is  sufficient  evidence  of  an  implied  contract  to  pay  by 
the  quarter,  and  not  to  take  the  child  away  without  a  quarter's  notice  or 
a  quarter's  pay;  such  being  the  usual  course  of  dealing  with  schoolmas- 
ters, who  do  not  in  general  undertake  to  teach  by  tlio  day  or  week,  but 
by  the  qunrtr-r.  If  the  law  were  otherwise,  they  might  Ix;  put  to  great 
inconvenience  in  providing  fruitlessly  for  an  ensuing  cjuartcr,  But  the 
plaintiff  is  entitled  to  recover  on  the  common  count;  for  even  it  there 
were  no  agreement  on  the  ?iibject  of  notice,  the  contract  was  by  the 
quarter;  and  in  Gnndcll  v.    Pontigny,  4  Campb.  375,  it  wai  holden, 


390        Collins  v.   Price.  T.  T.  1828. 

that  where  a  servant  is  hired  by  the  quarter,  if  he  be  discharged  by  his 
master  without  sufficient  cause  in  the  middle  of  a  quarter,  he  may  re- 
cover the  quarter's  wages  under  a  count  in  indebitatus  assumpsit.  In 
liobinsoii  V.  Hindman,  3  Esp.  235,  Lord  Kenyon  held  the  same. 
So  in  actions  for  use  and  occupation,  if  the  defendant  has  commenced  a 
quarter,  he  must  pay,  whether  he  occupies  the  whole  time  or  not.  In 
Dehimainer  v.  JVinteringham ,  4  Campb.  1S6,  it  was  held,  a  sailor 
might  recover  for  wages  during  an  imprisonment  on  shore  under  an 
embargo  in  a  foreign  port,         * 

Wilde.  The  defendant  must  be  liable  either  in  respect  of  an  ex- 
press or  an  implied  contract.  Express  contract  there  is  none,  here; 
and  there  is  no  fact  in  the  case  from  which  the  Court  can  imply  one;  for 
if  such  implication  can  be  raised  at  all,  where  is  the  line  to  be  drawn  ? 
"What  is  to  exclude  the  implication  of  a  contract  for  half  a  year  or  a 
year  as  well  as  a  quarter  ?  The  plaintiff's  was  only  a  day-school,  and 
whatever  may  be  urged  with  respect  to  the  practice  of  boarding-schools, 
for  day-schools  there  is  no  established  rule;  or  if  there  be  any,  it  is, 
that  instruction  is  paid  for  by  the  day  or  week  rather  than  by  the 
quarter. 

If  a  contract  by  the  quarter  may  be  implied  for  a  child's  day-school, 
why  not  for  a  dancing  or  a  fencing  academy  ?  But  it  would  be  impos- 
sible to  conduct  such  establishments,  if  persons  who  wanted  but  a  {&yv 
lessons  should  be  held  liable  to  pay  for  a  quarter. 

In  the  case  of  servants,  the  law  implies  a  contract  by  a  year,  Bees- 
t07i  V.  Col/i/er,  4  Bingh.  309.,  and  by  universal  usage  they  are  enti- 
tled to  a  month's  wages  or  a  month's  warning,  except  in  the  case  of 
misconduct.  In  the  case  of  houses,  the  landlord  may  be  unable  to  dis- 
pose of  his  premises  if  the  tenant  leaves  them  at  an  unfavourable  time 
of  the  year;  but  a  schoolmaster  can  go  on  without  interruption,  al- 
though one  of  his  scholars  should  fall  sick  or  die.  n  ^i  7, 
°                                                                                  Cur.  adv.  vult. 

Park  J.  Although  there  was  no  express  contract,  the  question  is, 
Whether  there  was  not  evidence  from  which  the  jury  might  infer  that 
there  was  an  implied  contract  from  quarter  to  quarter? 

We  do  not  think  it  necessary  to  assimilate  this  case  to  the  sailor's 
wages,  as  in  the  case  of  Cutter  v.  Powell^  6  T.  R.  320,  nor  to  those  of 
the  wages  during  the  Russian  embargo.  The  former  case  depends  upon 
a  question,  perhaps  of  public  policy;  the  latter  upon  the  very  peculiar 
circumstances  of  that  transaction. 

Here  the  former  payments  had  been  for  and  by  the  quarter.  A  new 
quarter  had  been  begun;  no  intention,  no  declaration  of  any  intention, 
to  take  away  the  child.  She  is  not  at  last  taken  from  school  by  the  pa- 
rent; but  the  child  falling  ill,  the  school-mistress  very  properly  sends  her 
home. 

No  intention  is  then  manifested  to  put  an  end  to  the  contract;  no 
fault  was  attributable  or  attributed  to  the  mistress,  who  would  have  con- 
tinued her  services,  if  they  had  been  accepted;  and,  therefore,  the  jury 
were  well  warranted  in  coming  to  the  conclusion  they  did. 

It  seems,  if  authority  were  wanting,  not  very  easy  to  distinguish  the 
case  of  Gandell  v.  Pontigny,  4  Camp.  375.  and  1  Stark.  198. 

I  quote  from  the  latter.  It  was  an  action  for  work  and  labour.  The 
plaintiff  had  been  employed  as  a  clerk  by  the  defendant,  in  his  counting- 
house,  at  a  salary  of  200/.  per  annum,  which  had  been  paid  quarterly. 


5  Bingham,  132.  391 

The  defendant  being  displeased  with  the  plaintiflf's  conduct,  on  the  11th 
August,  (in  the  midst  of  a  quarter)  discharged  him,  paying  him  25/., 
the  proportionate  salary  for  half  a  quarter,  which  would  expi -e  on  the 
15th  August.  The  plaintiff  tendered  himself  the  next  morning  at  the 
counting-house,  as  ready  to  discharge  his  duty  as  usual,  when  the  de- 
fendant declined  his  services.  The  Court  held,  that  the  plaintiff  was 
entitled  to  recover  his  salary  for  the  remainder  of  the  quarter,  on  the 
general  count  for  work  and  labour. 

Rule  discharged. 


STROTHER  and  Another  v.  BARR  and  Another.  («)— p.  136. 

Qucere,  Whether  in  an  action  for  an  injury  to  the  reversion,  proof  that  the  pre- 
mises were  devised  to  plaintiff,  and  that  an  occupier  holds  as  tenant  to  the 
plaintiff,  the  latter  fact  being  established  by  oral  evidence,  although  the  occu- 
pier holds  under  a  written  agreement,  be  sufficient  to  shew  a  reversion  in  the 
plaintiff. 

Beat  C.  J.  and  Burrough  J.  neg. ;  Park  J.  and  Gaselee  J.  aff. 

Gaselee  J.  In  this  case,  Marmaduke  Strother  and  Hannah  Strother 
are  the  plaintiffs,  and  Robert  Barr  and  Lewis  Morgan  defendants. 
This  comes  before  the  Court  upon  a  motion  to  set  aside  the  verdict, 
which  has  been  obtained  for  the  plaintiffs  with  1.?.  damages,  and  to  enter 
a  nonsuit.  This  case  was  tried  at  the  last  assizes  for  the  county  of  York 
by  my  Brother  Bayley.  It  was  an  action  upon  the  case,  for  an  injury 
to  the  reversion  of  the  plaintiffs,  by  pulling  down  certain  posts  and 
foundation-stones,  which  supported  a  wooden  building  called  Noah's 
Ark.  The  only  question  before  us,  is.  Whether  or  not  there  was  suffi- 
cient evidence  of  the  plaintiffs'  having  a  reversionary  interest?  The 
building  was  stated  in  the  declaration  to  be  partly  in  the  possession  of 
Joseph  Ingle  and  William  Milncr. 

In  order  to  prove  the  plaintiffs'  case,  Joseph  Ingle  was  called,  and 
said:  "I  know  the  Noah's  Ark;  I  occupy  part.  JVIr.  and  Miss  Strother, 
the  plaintiffs,  are  my  landlords.  William  Milner  occupies  another  part." 
Upon  cross-examination,  he  says,  "I  took  the  premises  of  Mr.  and  Miss 
Strother.  I  saw  both  often;  Mr.  Sti other  at  first.  I  hat!  an  agreement 
in  writing,  which  I  signed  my  name  to,  for  so  much  a  year.  I  have  held 
seven  years,  and  have  wrought  out  the  rent  every  year.  Milncr  occu- 
pies part  of  the  building  on  tlie  same  (loor  as  I  do."  The  will  of  Mary 
Strotlier,  devising  the  preniis(;s  to  the  plaintiffs,  as  tenants  in  common, 
was  then  put  in  and  read.  William  Milner,  the  other  tenant,  was  called, 
and  he  says,  *'I  pay  rent  for  what  I  occupy  to  Mr.  Strother.  I  do  not 
know  Miss  Strother." 

Upon  this  it  was  contended,  that  the  written  agreement  of  Joseph  In- 
gle sliould  be  produced.  (It  docs  not  appear  whether  there  was  any 
agreement  with  Milner  or  not.)  It  was  objected,  first,  that  the  written 
agreement  with  Ingle  shr)iil(|  be  produced,  because  among  other  things, 
the  quantum  of  the  damages  the  |)laintiffs  would  be  entitled  Id  recover 
would  depend  upon  the  length  of  Ingle's  term;  and,  secondly,  that  Mil- 
ner proved  a  tenancy  under  .Mr.  Strother  only.  The  learned  Judge  who 
tried  the  cause  adds:  "I   tluiught  it  desirable  to  have  the  case  (lecidcd 

(o)  The  facts  and  argumcnf*  in  this  rase  arc  so  fully  developed  in  the  judg- 
DJcnt,  that  it  wa«  deemed  impropprto  state  them  twice. 


392  Sthother  v.  Barii.  T.  T.  1828. 

upon  the  merits,  and  I  gave  the  defendant  leave  to  move  to  enter  a  non- 
suit, sliould  the  Court  be  of  opinion  I  ought  to  have  nonsuited  upon  the 
above  objection."  In  pursuance  of  the  leave  so  reserved,  application 
has  been  made  to  this  Court,  and  a  rule  was  granted  to  shew  cause  why 
a  nonsuit  should  not  be  entered.  That  rule  has  been  argued  before  the 
Conrt,  and  it  is  my  duty  to  state  my  opinion  first,  unfortunately  differing 
as  I  do  from  some  of  the  others  of  the  court.  Upon  the  best  con- 
sideration I  have  been  able  to  give  this  case,  I  am  of  opinion  this 
rule  ought  to  be  discharged.  I  do  not  mean  to  say,  contrary  to  prin- 
ciples long  established,  that  you  can  give  the  contents  of  a  written 
agreement  in  evidence  without  producing  the  agreement  itself.  If  it 
were  necessary  in  this  case  to  prove  the  terms  of  the  holding  of  the 
tenant,  I  should  be  of  opinion  the  rule  should  be  complied  with,  and  that 
the  tenancy  could  not  be  proved  by  other  evidence  than  by  producing 
the  written  agreement  itself.  But  it  appears  to  me  not  to  be  necessary 
to  prove  any  item  of  the  agreement.  The  facts  to  be  made  out  are  sim- 
ply these:  that  tlie  plaintitfs  have  an  interest  in  the  premises,  and  that 
the  persons  named  in  the  declaration  are  their  tenants.  Now  that  fact  is 
capable  of  proof,  and  was  actually  proved  without  the  intervention  of  any 
agreen:ient  or  lease;  without  having  recourse  to  any  one  item  in  it.  And 
I  find,  so  lately  as  the  year  1827,  a  case  was  determined  by  the  Court 
of  King's  Bench,  which  is  so  like  this  case,  that  I  cannot  make  the 
smallest  distinction.  Without,  therefore,  going  into  all  the  cases  which 
have  been  decided,  I  think  it  sufficient  to  go  no  further  than  to  read  an 
authority  that  appears  to  me  to  be  decisive  upon  this  case.  It  is  the  case 
of  y/ic  liinf^  V.  T/te  Inhabitayii.'i  of  the  Holy  Trinity  and  St.  Mar- 
garet, Hull,  whicii  is  to  be  found  in  1  Manning  and  Ryland'sRep.  444. 
S.  C.  7  B.  &  C.  611;  and  the  question  was.  Whether  or  not  the  plaintiff 
was  entitled  to  a  settlement  upon  a  tenement  of  10/.  a  year  value.  In 
order  to  prove  that,  the  appellants  were  proceeding  to  shew  that  the 
pauper  was  in  the  occupation  of  a  tenement  of  that  value:  the  respon- 
dent's counsel  thereupon  interposed,  and  asked  the  pauper  whether  the 
contract  under  which  he  held  the  tenement  was  not  in  writing;  and  upon 
his  answering  that  it  was,  tlicy  objected  that  no  parol  evidence  could  be 
received  upon  the  subject,  but  that  the  document  itself  must  be  produced, 
or  the  loss  of  it  proved.  The  appellant's  counsel,  in  reply,  contended, 
that  they  were  not  examining  as  to  the  contents  of  the  document,  with 
which  they  had  nothing  to  do,  but  all  they  proposed  to  prove,  was  the 
fact  of  the  occupation  and  the  rent  paid  by  the  occupier;  and  that  they 
were  at  liberty  to  prove  so  much  by  the  cross-examination  of  the  pauper, 
witliout  any  reference  to  the  agreement.  The  court  of  quarter  session.^, 
however,  were  of  opinion  that  the  written  agreement  ought  to  be  pro- 
duced, or  its  absence  accounted  for;  and  that  neither  being  done,  the 
parol  evidence  was  not  admissible.  The  evidence  consequently  was  re- 
jected. 

Upon  a  case  being  granted,  ihe  Court  of  King's  Bench  after  hearing 
counsel  at  some  length  stopped  him,  and  my  Brother  Bayley  said,  "The 
appellants  did  not  enquire  into  the  terms  or  contents  of  the  written 
agreement.  They  simply  asked  a  question  as  to  the  fact,  whether  the 
pauper  had  or  had  not  been  tenant  of  th.c  premises  in  a  particular  parish. 
Surely  in  reply  to  that  question  the  witness  ought  to  be  allowed  to  say,- 
'  I  was  the  tenant  of  A.'"  In  giving  the  judgment  of  the  Court,  my 
Brother  Bayley  says:  "The  contents  of  this  written  agreement  could 


5  Bingham,  136.  393 

not  be  proved  by  parol  evidence,  and,  therefore,  it  was  properly  de- 
cided in  the  cases  which  have  been  cited,  that  where  such  a  written  agree- 
ment was  in  existence,  the  terms  of  the  tenancy,  or  amount  of  the  rent, 
could  be  proved  only  by  the  production  of  the  agreement  itself.  But 
the  rule  of  law  does  not  go  so  far  as  to  prevent  the  admission  of  parol 
evidence,  of  the  fact  that  the  relation  of  landlord  and  tenant  existed  be- 
tween particular  parties  at  a  particular  time  in  a  particular  parish.  I 
think  decidedly  that  proof  by  parol  of  the  fact  of  the  pauper's  having 
been  tenant  was  receivable,  and,  therefore,  that  the  sessions  were 
wrong." 

This  question  was  also  brought  before  the  Court  of  King's  Bench  in 
The  King  v.  Inhabitants  of  Castle  Morton,  3  B.  &  A.  58S;  when 
the  Court  held  the  agreement  must  be  produced,  and  parol  evidence 
could  not  be  given  of  it.  But  the  plaintiff  in  that  case  was  not  merely 
to  prove  there  was  the  relationship  of  landlord  and  tenant;  he  sought  to 
shew  by  the  agreement, .which  was  unstamped,  that  the  premises  were 
of  the  value  of  10/.  a  year,  of  which  he  offered  no  other  evidence  but  the 
contents  of  the  contract  itself.  The  Court  held  that  he  ought  to  produce 
the  agreement,  and  that  he  could  not  give  parol  evidence  of  it.  Lord 
Tenterden  in  giving  his  judgment,  referring  to  Dover  v.  Mestaer,  5 
Esp.  92,  says,  "The  promissory  note  was  there  admitted  in  evidence, 
on  the  ground  that  the  defendant,  who  had  in  that  case  been  guilty  of  a 
crime,  should  not  be  allowed  to  relieve  himself  from  the  consequences 
of  it  by  such  an  objection:  (that  it  was  unstamped.)  And  so  in  the  case 
of  forgery,  a  prisoner  cannot  object  that  the  forged  instrument  when 
produced  cannot  be  given  in  evidence  for  want  of  a  proper  stamp.  But 
this  case  is  very  different;  for  the  parties  here  seek  to  shew  the  value  of 
a  tenement  by  the  proof  of  a  contract  previously  entered  into  respec- 
ting it.  The  contract  was  not,  therefore,  in  this  case  collateral,  but  of 
the  very  essence  of  the  case."  To  be  sure  it  was,  because  there  the 
mode  resorted  to  for  proving  the  value  was  to  shew  that  the  pauper  had 
contracted  to  give  so  much. 

Now  in  the  present  case  there  is  not  one  syllable  of  proof  of  what 
quantity  of  rent  was  to  he  paid.  All  that  it  was  necessary  to  prove, 
was,  that  the  plaintiffs  were  landlords  of  the  persons  named  in  the  de- 
claration, and  that  they  were  tenants;  and  how  is  that  proved  ?  The 
landlords'  right  is  proved  by  the  best  of  all  possible  evidence;  they  claim 
under  the  will  of  M.iry  Strother,  and  the  will  is  put  in  and  read,  and  by 
tlie  will  the  plaintiffs  are  constitutetl  tenants  in  common.  What  is  the 
next  fact  proved  .''  Tlmt  the  occupiers  are  tenants  to  the  j)hintifl's  of 
the  estate.  That  I  consider  would  be  prima  facie  evidence  of  a  seizin 
in  fee.  The  witness  goes  on  to  saj',  however,  not  that  he  is  in  jkjsscs- 
sion  merely,  but  "  I  am  in  possession  as  tenant  to  the  two  plaintiffs,  to 
whom  I  pay  rent."  That  is  all  that  it  is  necessary  to  enquire.  The 
objection  taken  at  the  trial  was,  that  there  was  no  evidence  of  the  value 
of  the  reversion,  and,  therefore,  the  damages  could  not  be  ascertained. 
If,  indeed,  the  plaintiffs  had  gone  for  damages  commensurate  to  their 
title,  and  wanted  to  prove  it,  they  must  have  taken  some  courae  or  other 
1()  do  it;  but  the  pI.Tiiitifi's  do  ru)t.  appeir  to  have  done  that  here.  Pro- 
bably if  they  had  gotie  for  dainagcs  tlif\v  must  have  gone  further,  and 
have  proflufed  their  agrocment,  that  being  the  only  means  by  which 
they  could  shew  the  extent  of  their  interest.  Hut  tiii.s  is  liUe  every 
other  case   wlierc    no   rml   tlaniagrs  are  to  be  provrd.      An  injury    was 

VOL.  XV.  50 


394  Strotheu  v.  Barr.  T.  T.  1828. 

done,  but  the  plaintifls  were  content  to  take  nominal  damages.  Now, 
was  it  a  necessary  thing  to  prove  exent  of  title  in  this  case  ?  1  appre- 
hend not,  because  in  the  case  which  will  most  probably  be  relied  upon 
as  deciding  this  point,  the  Court  held,  that  although  there  was  no  evi- 
dence of  damages,  the  party  was  entitled  to  a  shilling.  I  am  speaking 
of  the  case  of  Cotterill  v.  Hobby,  4  B.  &  C.  465.  It  was  an  action  for 
an  injury  to  a  reversion,  by  cutting  down  a  tree.  The  first  count  stated 
a  written  agreement;  and  the  Court  held  there,  that  it  was  necessary  the 
written  agreement  should  be  produced.  And  why  ?  Because  there  the 
question  was,  whether  the  trees  had  been  demised;  that  could  only  be 
ascertained  by  the  agreement  itself,  and  the  Court  held  the  agreement 
should  be  produced.  Now,  as  there  is  no  question  of  that  sort  here,  I 
do  not  think  that  case  applies  to  the  prmciple  which  is  to  decide  this. 
The  Court  held  there,  that  the  plaintiff  was  entitled  to  recover  upon  his 
count  in  trover,  the  defendants  having  cut  down  a  tree  which  was  proved 
to  belong  to  the  plaintiff:  but  whether  the  plaintiff  claimed  it  as  rever- 
sioner or  as  occupier,  or  by  any  other  title,  was  not  the  question  in  the 
action,  which  was  trespass  on  the  case;  he  was  clearly  entitled  to  the 
wood,  in  whatever  character  he  appeared,  whether  as  reversioner  or  oc- 
cupier. The  Court  held  he  was  entitled  to  recover  the  value  of  the 
tree,  inasmuch  as  evidence  had  been  given  to  prove  his  title  to  it. 
I  am  of  opinion  this  rule  should  be  discharged. 

BuRRDUGH  J.  I  am  very  sorry  to  differ  from  my  Brother  Gaselee, 
but  I  am  clearly  of  opinion  the  other  way,  and  I  will  state  very  shortly 
why.  The  application  of  the  rules  of  evidence  depends  very  much  on 
the  nature  of  each  particular  action.  Here  the  plaintiffs  have  a  rever- 
sionary interest  in  lands  which  are  in  the  possession  or  occupation  of  cer- 
tain persons.  But  it  must  be  recollected  that  the  defendants  are  entire 
strangers  to  such  interest,  as  they  are  not  the  tenants  or  occupiers,  but 
mere  wrong-doers.  I  admit  tiiat  payment  of  rent  is  prima  facie  evidence 
of  a  reversion  in  the  plaintiffs;  but  when  one  of  those  witnesses  said,  he 
was  tenant  to  the  plaintiffs,  and  held  under  an  agreement,  no  parol  evi- 
dence was  receivable,  as  the  agreement  itself  should  have  been  pro- 
duced. Whether  the  plaintiffs  were  entitled  or  not  would  depend  on  the 
construction  of  that  instrument,  and  when  produced,  it  might  shew  an 
interest  different  from  that  of  a  reversionary  interest.  It  is  impossible 
to  say  what  the  plaintiffs'  interest  was,  until  the  instrument  was  pro- 
duced. There  was  no  evidence,  therefore,  to  go  to  thejury  of  any  rever- 
sion, and  the  plaintiffs  failed  in  the  material  point.  As  to  the  verdict  be- 
ing taken  for  nominal  damages,  that  proves  nothing  in  my  opinion. 
There  was  nothing  proper  to  go  to  thejury,  unless  the  agreement  were 
produced;  and  I,  therefore,  should  have  directed  a  verdict  for  the  defen- 
dant. It  is  the  common  course  in  trials  at  Nisi  Prius,  if  the  term  a  party 
holds,  is  by  a  contract  in  writing,  to  have  the  contract  produced,  and  no 
other  evidence  can  be  receivable  to  explain  its  contents;  and  here,  as  the 
plaintiffs  did  not  produce  the  agreement,  they  made  out  no  case  against 
the  defendants  as  wrong-doers.  The  defendants  are  mere  wrong-doers, 
and  not  tenants  or  occupiers. 

On  the  whole,  therefore,  it  appears  to  mc,  that  the  general  rule  of 
evidence,  as  laid  down  by  the  text  writers  with  respect  to  the  admissi- 
bility of  parol  testimony  to  explain  the  contents  of  a  written  instrument, 
is  particularly  applicable  to  this  case.  Here  the  party  held  by  a  written 
agreement,  which  should  have  been  produced,  without  which  he  prov- 


5  Bingham,  136.  395 

ed  nothing.  I  am  clearly  of  opinion,  that  the  rule  of  evidence  should 
have  been  complied  with;  and,  therefore,  that  the  rule  for  a  new  trial 
must  be  made  absolute. 

Park  J.  Upon  the  first  question  I  think  that  there  was  sufficient  evi- 
dence to  go  to  the  jury  of  a  tenancy  by  both  the  occupiers  named  in  the 
declaration  under  both  the  plaintiffs. 

The  main  question  is,  Whether  in  order  to  prove  a  reversion  in  the 
plaintiffs,  it  was  necessary  to  give  more  evidence  than  was  given  at  the 
trial  ?  I  am  of  opinion  it  was  not.  Let  us  see  what  vvas  proved.  The 
plaintiffs  had  the  property  devised  to  them  as  tenants  in  common,  by  the 
will  of  Mary  Strother,  which  was  read.  It  does  not  state  what  quantum 
of  estate  they  had;  but  in  the  absence  of  other  proof,  the  estate  being  de- 
vised to  them,  and  rent  being  paid  to  them,  it  is  to  be  presumed,  till  the 
contrary  is  shewn,  to  be  a  tenancy  in  fee.  The  tenants  could  not  have 
the  fee,  for  that  would  have  required  a  conveyance  by  deed,  whereas 
this  is  only  said  to  bean  agreement. 

But  it  was  said  by  counsel  at  the  trial,  the  agreement  ought  to  have 
been  produced,  because  (amongst  other  things)  the  plaintiffs,  without  it, 
could  not  shew  the  amount  of  the  damages,  for  they  could  not  shew  the 
extent  of  their  reversion,  upon  the  duration  of  which  their  injury  and 
damage  depended.  True,  this  is  certainly  so;  but  what  is  that  to  the  de- 
fendants ?  The  plaintiffs  are  the  losers  by  that,  and  they  have  lost, 
having  only  got  Is.  damages;  and  if  they  had  only  a  week's  reversion, 
they  could  not  have  got  less.  This  is  all  that  it  is  necessary  for  me  to  say 
on  this  part  of  the  case,  and  I  think  I  am  borne  out  by  authority;  and  al- 
though, no  doubt,  in  this  matter,  as  well  as  in  most  others,  there  is  a  con- 
trariety of  decisions,  yet  I  am  a  great  enemy  to,  vacillations  in  judg- 
ment; and  even  if  there  are  many  cases  the  other  way,  yet,  findingcases 
perhaps  comparatively  modern  in  support  of  my  present  opinion,  I  think 
it  better  to  stand  upon  the  later  authorities. 

The  doctrine  I  wisli  to  be  understood  as  holding  is  this,  that  parol  evi- 
dence of  the  contents  of  a  written  instrument  cannot  be  given  where  the 
contract  contained  in  such  instrument  is  the  subject  of  the  suit;  because 
the  terms  of  the  agreement  must  depend  on  the  written  instrument. 

Thus,  in  one  of  the  cases,  lireincr  v.  I^dlmcr,  3  Esp.  N.  P.  C.213, 
Lord  E/dun,  then  Chief  Justice  of  this  Court,  wliere  an  action  for  the 
use  and  occupation  of  certain  premises,  which  had  been  demised  by  an 
agreement  in  writing,  was  brought,  nonsuited  the  plaintiff  on  the  non- 
production  of  the  wiiling;  and  rightly,  because  the  ferms  o(  the  holding 
must  have  been  proved,  and  they  could  be  allowed  to  appear  from  the 
written  ngreerneulonly . 

The  princi|)le,  as  fir  as  I  have  been  able  tndisonvcr  it  by  releroncc  to 
many  cases,  is  thatsliortiv  stated  by  Lord  Teiilcrdvn  in  his  usual  neat 
and  precise  manner.  <'  The  parties  seek  to  shew  the  v.diie  of  a  tenement 
by  the  proof  of  a  written  contract  previously  entered  into  respecting  it. 
The  contract,  therefore,  is  not  collateral,  but  of  the  very  essence  of  the 
case,  and  therefore  could  not  be  proved  by  parol  evidence." 

'I'hat  was  the  opinion  he  gave  in  a  very  short,  but  very  correct,  judg- 
ment in  The.  K'um  V.  Inhdhilnnfs  nfCasllc  Morton.  There,  a  pau- 
prr  being  removed,  claimeil  a  sctthMiient  by  having  rentfd  ;i  tenement  of 
in/,  a  year;  and  it  appeared  that  the  renting  was  by  virtu*'  of  a  written 
agreement,  which  it  was  nercssnrv  in  that  instance  In  produr(\  iniismuch 
as   no  other  evidence  was  adduceil   to  shew  the  value  of  the   premises. 


396  St  ROT  HER  v.  Bark.  T.  T.  1828. 

The  Court  held,  that  the  written  agreement  should  have  been  produced, 
for  there  tlie  contract  was  not  collateral,  but  the  very  essence  of  the  case. 
The  same  rule  applies  to  the  case  oi Dover  v.  Mestaer,  5  Esp.  92.  But, 
on  the  other  hand,  Bucher  v.  Jarrett,  3  Bos.  &  I*ul.  143,  seems  to  mo 
to  go  the  full  length  of  this  case.  It  was  an  action  of  trover  for  the  cer- 
tificate of  a  ship's  registry,  and  it  was  held  the  certificate  might  be  prov- 
ed by  the  production  of  the  registry  from  which  it  was  copied,  though 
no  notice  had  been  given  to  produce  the  certificate  itself.  Lord  Alvan- 
ley,  Mr.  Justice  Heath,  JNIr.  Justice  Rooke,  and  Mr.  Justice  Chambre 
gave  their  opinions  at  full  length  upon  the  case;  and  the  judgment  of  Mr. 
Justice  Chambre  in  particular  states  the  point  most  neatly,  and  carries 
the  principle  to  the  full  extent  of  the  present  case.  He  says,  *<  There  is 
an  essential  difference,  as  I  conceive,  between  the  mode  of  proving  a 
very  general  or  a  very  minute  description  of  a  written  instrument.  The 
rule  undoubtedly  is,  that  no  evidence  can  be  received  of  the  contents  of 
a  written  instrument,  but  the  instrument  itself.  But  in  this  case  the 
plaintiffs  declared  in  trover  for  a  written  instrument,  describing  it  gene- 
rally, and  not  referring  to  its  contents,  of  which  evidence  could  not  have 
been  received,  as  no  notice  had  been  given  to  the  defendant  to  produce 
the  instrument  itself." 

There  is  also  the  case  of  Hoiu  v.  Hall,  14  East,  274,  which  was  de- 
cided upon  the  same  principle  as  that  which  1  have  just  mentioned.  It 
was  an  action  of  trover  for  a  bond.  It  was  contended  the  plaintiff  might 
give  parol  evidence  of  it  to  support  the  general  description  of  the  instru- 
ment stated  in  the  declaration,  it  not  being  necessary  in  such  an  action 
to  go  into  minute  particulars  of  the  contract  by  producing  the  instru- 
ment itself.  The  Chief  Justice,  Lord  Ellenborough,  and  Mr.  Justice 
Le  Blanc,  after  entering  fully  into  the  case,  held,  that  in  the  nature  of 
things,  it  was  not  necessary  that  it  should  be  so:  that  the  case  did  not  re- 
quire the  production  of  the  instrument. 

Jolly  y.  Taylor^  1  Campb.  143,  was  an  action  of  assumpsit  against  the 
proprietor  of  a  stage-coach  on  a  promise  to  carry  three  promissory-notes 
of  5/.  each  from  Ware  to  London.  It  was  objected  by  Mr.  Serjt.  Best, 
that  before  giving  evidence  of  tl;e  contents  of  the  notes  the  plaintiff  must 
prove  a  notice  to  produce  them,  as  promissory-notes,  like  all  written  in- 
struments, should  speak  for  themselves,  and  were  not  to  be  described 
according  to  the  loose  recollection  of  witnesses.  But  Chief  Justice 
Mansfield  said,  "  A  notice  here  appears  to  me  to  be  unnecessary.  I  can 
make  no  distinction  as  to  this  purpose  between  written  instruments  and 
other  articles;  between  trover  for  a  promissory-note  and  trover  lor  a  wag- 
gon and  horses." 

The  case  of  Davis  v.  Reynolds,  1  Stark.  115,  was  an  action  where 
Cowper  and  Co.  of  London  had  bought  of  Peacock  and  Co.,  who  resided 
in  the  North  of  England,  certain  flax,  which  had  been  consigned  to 
Cowper,  and  landed  on  the  defendant's  wharf  in  London.  Cowper  and 
Co.  had  transmitted  to  Peacock  their  acceptance  for  the  amount,  and  had 
sold  the  flax  to  the  plaintiff,  vvho  had  paid  them  the  amount,  and  had 
taken  a  receipt.  The  bill  of  lading  was  tendered  in  evidence,  but  re- 
jected for  want  of  a  stamp.  Lord  Ellenborough  said,  "  The  right  of 
possession  follows  the  right  of  property.  When  the  goods  arrived  at 
the  wharf  they  were  delivered  to  the  wharfinger,  as  the  bailee,  for  the 
benefit  of  the  persons  entitled.  At  that  time  Cowper  and  Co.  were  en- 
titled, for  they  had  paid  their  accepted  bill  for  the  goods,  which  does 


5  Bingham,  135.  397 

not  appear  to  have  been  dishonoured;  they  had  thereby  acquired  a  right 
of  property  which  they  were  competent  to  assign." 

In  Doe  d.  Sir  Mark  Wood  v.  Morris,  12  East,  237,  it  was  holden 
that  in  ejectment  the  landlord  having  proved  payment  of  rent  by  the 
defendant,  and  half  a  year's  notice  to  quit  given  to  him,  cannot  be  turned 
round  by  his  witness  proving  on  cross-examination,  that  an  agreement 
relative  to  the  land  in  question  was  produced  at  a  former  trial  between 
the  same  parties,  and  was,  on  the  morning  of  the  then  trial,  seen  in  the 
hands  of  the  plaintiff's  attorney,  the  contents  of  which  the  witness  did 
not  know;  no  notice  having  been  given  by  the  defendant  to  produce 
that  paper;  for  though  it  might  be  an  agreement  relative  to  the  land,  it 
might  not  affect  the  matter  in  judgment,  nor  even  have  been  made  be 
tween  those  parties. 

In  the  present  case  it  v/as  not  necessary,  in  order  to  prove  the  re- 
versionary interest  to  be  in  the  plaintiffs,  to  produce  an  agreement  with 
their  lessee,  when  it  was  clearly  proved  they,  the  plaintiffs,  held  the 
premises  as  tenants  in  common  under  the  will,  which  was  read.  And 
although  the  quantum  of  interest  which  each  had  did  not  appear,  still 
there  was  prima  facie  evidence  of  a  holding  in  fee  till  the  contrary  was 
shewn.  In  Doe  d.  Sir  M.  Wood  v.  Morris,  Lord  Ellenborovgh  says, 
"  How  can  we  say  that  the  plaintiff  ought  to  have  been  nonsuited  for 
want  of  giving  the  best  evidence  of  the  tenancy,  unless  it  appeared  that 
there  was  other  and  better  evidence  of  it  in  an  agreement  in  writing 
between  the  landlord  and  his  tenant,  which  the  landlord  kept  back? 
Enough  at  least  ought  to  appear  to  shew  that  the  paper  not  produced 
was  better  evidence  of  the  terms  of  the  tenancy  than  the  evidence  which 
was  received;  but  it  did  not  appear  that  it  was  an  agreement  between 
these  parties,  or  that  it  was  an  existing  agreement  at  this  time.  It  might 
have  been  an  agreement  between  the  defendant  and  his  former  landlord, 
or  it  might  have  related  to  a  former  period  of  the  tenancy.  The  witness 
(lid  not  profess  to  know  any  thing  of  the  contents  of  the  paper,  only  that 
it  was  an  agreement  relative  to  the  lands  in  question.  We  determined 
a  case  of  Doc  d.  Shearwood  v.  Pearson  similar  to  this,  in  the  last  term , 
where  the  rule  for  a  new  trial,  which  was  moved  on  the  same  ground, 
was  finally  discharged." 

In  the  case  of  Stevens  v.  IHjiney,  2  B.  Moore,  319,  my  learned 
brother  Burrough  held,  that  it  was  not  necessary  to  produce  the  writ- 
ten agreement. 

It  was  an  action  for  work  and  labour.  The  plaintiff  having  provod 
the  value  of  the  work  done,  and  closed  his  case,  one  of  the  dclendanls' 
witnesses  swore  that  there  was  a  memorandum  in  writing,  containing  an 
estimate  of  the  prices  at  which  the  work  was  to  be  perfoimed,  and  pro- 
duced a  copy  in  the  plaintiff's  hanrhvritinm  unstamped,  and  not  signed 
either  by  him  or  the  defendant.  The  learned  Juflgo  wlio  tried  the  cause 
held,  that  the  plaintiff  was  not  thereby  procludcl  from  recovering  on 
the  common  counts.  I  do  not  think  that  will  apply  to  the  present  case. 
The  case  afterwards  came  before  the  Court,  when  the  ruling  of  my 
learned  brother  was  confirmed,  and  the  Court  certainly  relied  very 
much  on  the  case  of  Doc  d.  Sir  M.  Wood,  and  the  case  ilicn  mentioned 
of  Sfiennrood  v.  Pct/rson,  as  siipporlinq;  that  opinion. 

Thr;  remaining;;  case  to  \v  uicntintiod  is  y'/ir  King  v.  IVtr  fnhahi/nnf.'^ 
of  the  lioli/  Triniti/,  Hull;  and  it  docs  sfntn  to  mc  to  hn  quitr  impo.^si- 
ble  to  distinguish  the  reasoning  of  the  ju'lgmnii   in  that  case  from  the 


398  Stuother  v.  Baku.  T.  T.  1828. 

present.  If  that  case  be  law,  and  if  it  be  a  decision  of  a  competent 
jurisdiction,  I  do  not  think  it  necessary  now  to  go  back  to  more  remote 
decisions  on  any  special  deviation  from  the  old  rule.  My  learned  brother 
Bai/lcy,  in  giving  judgment  in  that  case,  says  "the  contents  of  this 
written  agreement  undoubtedly  could  not  be  proved  by  parol,  and,  there- 
fore, it  was  properly  held  in  the  cases  which  have  been  cited,  that  where 
such  written  agreement  was  in  existence,  the  terms  of  the  tenancy  or 
the  amount  of  the  rent  could  be  proved  only  by  the  production  of  the 
agreement  itself.  But  the  rule  of  law  does  not  go  so  far  as  to  prevent 
the  admission  of  parol  evidence  of  the  fact,  that  the  relation  of  landlord 
and  tenant  existed  between  particular  parties  at  a  particular  time,  in 
a  particular  parish;  I  think  decidedly,  that  proof  by  parol  of  the  fact  of 
the  pauper's  having  been  tenant  was  receivable,  and,  therefore,  that  the 
sessions  were  wrong."  The  other  Judges  concurred  with  the  judgment 
delivered  by  the  learned  Judge.  That  case  I  cannot  distinguish  from 
the  present.  There  is  a  discrepancy  between  the  cases  on  this  subject, 
which  is  much  to  be  lamented.  1  have  only  to  say,  that  the  case  of 
The  King  v.  The  Inhabitants  of  the  Holy  Trinity,  Hull,  is  certainly 
much  posterior  in  point  of  date  to  that  of  Cotterill  v.  Hobby. 

The  main  case,  however,  upon  the  subject,  and  to  which  I  pay  the 
most  unfeigned  respect,  is  the  case  of  Doe  d.  Shearwood  v.  Pearson, 
12  East,  239.  The  objection  arose  on  the  notice  to  quit.  The  son  of 
the  lessor  of  the  plaintiff  proved  that  he  had  received  rent  of  the  defend- 
ant for  his  mother,  and  the  time  of  these  receipts  agreed  with  the  time 
for  which  the  notice  to  quit  was  given;  but  he  also  spoke  of  the  time 
for  quitting  from  a  written  agreement  entered  into  at  the  time  of  the 
taking  between  his  mother  and  the  defendant,  which  he  said  he  had  lately 
seen  in  the  possession  of  his  mother,  whereupon  the  objection  arose  that 
the  agreement  ought  to  have  been  produced,  which  was  overruled  by 
INIr.  Justice  Chambre  at  the  tiial  at  York,  and  on  its  afterwards  coming 
before  the  Court  to  set  aside  his  opinion,  the  rule  was  finally  discharged. 
Now,  where  such  a  man  as  Mr.  Justice  Chambre,  whose  knowledge  in 
his  profession  was  so  considerable,  whose  clearness  of  head  and  accuracy 
of  understanding  were  well  appreciated  by  all  his  contemporaries,  held 
this  opinion,  and  when  that  opinion  was  confirmed  by  Lord  Ellenbo^ 
rough,  Mr.  Justice  Grose,  that  able  and  consummate  lawyer,  Mr.  Justice 
Le  Blanc,  and  Mr.  Justice  Bayley — greatly  as  I  lament  that  1  differ  in 
opinion  from  my  Lord  Chief  Justice,  and  my  hroVhcr  Burrough,  whose 
opinion  I  also  greatly  and  highly  value — if  1  err,  I  err  with  those  re- 
specting whom  and  whose  authority  no  Judge  has  occasion  to  be  ashamed. 
I  iherefore  am  of  opinion  with  my  brother  Gaselee,  that  the  rule  ought 
to  be  discharged. 

Best  C.  J.  Since  this  case  was  argued  at  the  bar,  it  has  occupied  a 
great  deal  of  my  attention,  and  I  have  anxiously  endeavoured  to  reconcile 
my  opinion  with  that  of  my  two  learned  brothers,  from  whom  I  have 
the  misfortune  to  differ.      But  I  have  not  been  able  to  do  so. 

I  seldom  pass  a  day  in  a  Nisi  Prius  court  without  wishing  that  there 
had  been  some  written  statement,  evidentiary  of  the  matters  in  dispute. 
More  actions  have  arisen  perhaps  from  want  of  attention  and  observa- 
tion at  the  time  of  a  transaction,  from  the  imperfection  of  human  memory, 
and  f.'-om  witnesses  being  too  ignorant,  too  much  under  the  influence  of 
prejudice,  to  give  a  true  account  of  it,  than  from  any  other  cause.  There 
is  often  a  great  difBculty  in  getting  at  the  truth  by  meaivs  of  parol  tcsti- 


5  Bingham,  136.  399 

mony.  Our  ancestors  were  wise  in  making  it  a  rule  that  in  all  cases  the 
best  evidence  that  could  be  had  should  be  produced;  and  great  writers  on 
the  law  of  evidence  say,  if  the  best  evidence  be  kept  back,  it  raises  a  sus- 
picion that  if  produced  it  would  falsify  the  secondary  evidence  on  which 
the  party  has  rested  his  case.  The  first  case  these  writers  refer  to  as  being 
governed  by  this  rule  is,  that  where  there  is  a  contract  in  writing  no 
parol  testimony  can  be  received  of  its  contents,  unless  the  instrument  be 
proved  to  have  been  lost.  It  is  assumed  the  case  before  us  is  not  within 
this  rule,  and  that  the  plaintifls  did  not  give  parol  evidence  of  the  con- 
tents of  the  lease  of  the  premises,  for  the  injury  for  which  this  action 
was  brought.  This  will  be  found  to  be  a  mistake;  for  the  declaration 
states  that  the  plaintiffs  had  let  these  premises  to  certain  tenants,  and 
that  the  conduct  of  the  defendants  is  injurious  to  the  reversion  which 
the  plaintiffs  have  in  them.  This  statement  must  be  proved;  and  is  not 
the  lease,  which  states  all  the  circumstances  of  the  tenancy,  the  best 
evidence  of  them  ? 

If  there  had  been  no  contract  in  writing,  the  testimony  of  the  tenants 
that  they  occupied  the  premises  injured  by  the  defendants,  and  that  they 
paid  the  plaintiffs  rent  for  these  premises,  would  have  proved  the  decla- 
ration; such  testimony  would  in  that  case  have  established  the  relation- 
ship of  landlord  and  tenant,  and  have  shewn  that  the  plaintiffs  must  have 
had  a  reversion  at  the  expiration  of  the  regular  notice  to  quit,  or,  at  the 
furthest,  at  the  expiration  of  three  years;  that  being  the  longest  period 
for  which  a  parol  lease  could,  by  the  statute  of  frauds,  be  granted.  But 
as  there  was  a  lease  or  agreement  in  writing,  that  lease  or  agreement 
was  better  evidence  of  the  relationship  of  landlord  and  tenant  than  any 
parol  evidence  that  could  be  adduced. 

This  lease  or  agreement  gave  a  description  of  the  premises  demised, 
and  stated  the  names  of  the  tenants  to  whom  they  had  been  leased,  the 
persons  by  whom,  and  the  term  for  which  they  were  demised. 

These  parts  of  the  contract  could  be  seen  by  its  production  only,  and, 
therefore,  the  contract  was  the  best,  and,  I  think,  the  only  evidence  th:it 
could  be  received.  But  there  is  one  fact  that  cannot  be  inferred  from  the 
facts  proved  in  the  case,  and  can  only  be  obtained  from  the  production  of 
the  lease  or  contract;  namely,  the  duration  of  the  term.  It  has  been  said 
at  the  bar,  that  the  plaintiffs  were  content  to  take  nominnl  damages,  and  it 
was  not  material  to  shew  when  the  estate  whicli  was  injured  was  to  return 
into  their  possession,  liut  it  docs  not  appear  from  the  evidence,  that  they 
had  any  reversion.  This  estate  might  be  gr.mted  for  one  tlioiis;ind  years; 
might  be  the  assignment  of  a  term  with  a  covenant  by  the  assignee  to  p.-iy 
rent.  If  the  plaintifls  would  have  no  reversion  for  a  thousand  years,  1  doubt 
whether  they  would  have  such  an  interest  as  to  maintain  an  action  for 
an  injury  to  so  remote  a  reversion.  To  support  an  action  of  this  sort, 
there  must  be  some  damage,  and  it  is  impossible  to  prove  any  damage 
in  the  case  I  have  stated.  The  objcciiot),  however,  on  which  I  rest  my 
opmion  is  this,  that  matters  which  are  stated  in  the  lease,  have  been 
proved  by  parol  testimony. 

It  cannot  be  <leiiied  that  the  lease  must  have  been  produced  to  prove 
the  amount  of  rent,  if  it  were  nerrssary  to  ascertain  if. 

The  lease  also  stales  the  landlord's  and  tenant's  names,  and  describes 
the  premises,  and  the  term.  If  the  lease  must  be  produced  to  prove  the 
rent,  it  must,  for  the  same  reasons,  be  produced  to  [)rove  these  other 
facts. 


400  SruoTHER  V.  Baku.  T.  T.  1828. 

Lord  Mansfield,  speaking  many  years  ago  against  subtilties  and  re- 
finements being  introduced  into  our  law,  said  they  were  encroacliments 
upon  common  sense,  and  mankind  would  not  fail  to  regret  them.  It  is 
lime,  he  says,  these  should  be  got  rid  of:  no  additions  should  be  made 
to  tliem:  our  jurisprudence  should  be  bottomed  on  plain  broad  princi- 
ples, such  as,  not  only  Judges  can  without  dilFiculty  apply  to  the  cases 
that  occur,  but  as  those  whose  rights  are  to  be  decided  upon  by  them 
can  understand.  If  our  rules  are  to  be  encumbered  with  all  the  excep- 
tions which  ingenious  minds  can  imagine,  there  is  no  certain  principle 
to  direct  us,  and  it  were  better  to  apply  the  principles  of  justice  to  every 
case,  and  not  to  proceed  to  more  fixed  rules. 

If  plain  intelligible  rules  are  more  necessary  in  one  part  of  our  law 
than  another,  the  necessity  exists  most  strongly  in  the  law  of  evidence. 
The  law  of  evidence  is  the  same  in  actions  for  injuries  to  the  reversion 
as  in  high  treason;  and  one  of  the  most  learned  writers  upon  the  spirit 
of  the  laws  of  England  has  said,  that  uncertainty  in  the  law  of  high  trea- 
son would  prevent  any  state  from  being  free.      This  was  the  opinion  of 
our  ancestors,  who,  in  Edward  the  Third's  time,  crushed,  by  one  stat- 
ute, all  the  subtilties  and  uncertainties  that  had  been  introduced  into  our 
laws.     The  relaxing  the  rules  of  evidence  is  more  dangerous  in  the  ad- 
ministration of  justice,  than  all  the  constructive  treasons  that  ever  were 
invented.     Suppose  it  to  be  proved,  under  an  indictment  for  treason, 
that  arms  and  treasonable  papers  are  found  in  a  house.      To  prove  that 
that  house  was  in  the  occupation  of  one  of  the  prisoners,  the  landlord  is 
called,  who  says  that  the  prisoner  took  the  house  of  him,  and  paid  him 
rent;  upon  this  the  witness  is  asked,  if  he  did  not  let  his  house  by  a 
lease  in  writing,  and  he  answers  in  the  affirmative;  and  suppose  an  ob- 
jection is  made  for  the  prisoner  that  the  written  instrument  is  the  best 
evidence  to  shew  who  was  the  tenant  of  the  house;  the  Judge  answers, 
if  you  wish  to  prove  the  contents  of  the  lease,  you  must  produce  it, 
but  the  prosecutors  only  want  to  shew  that  the  prisoner  was  tenant,  and 
allhough  the  lease  would  certainly  shew  that,  yet  the  tenancy  of  the 
prisoner  may  be  proved  by  the  payment  of  rent.    A  gunsmith  from  Bir- 
mingham proves  the  prisoner  was  the  person  who  bought  the  arms  of 
him,  and  that  he  sent  them  to  his  house,  and  that  a  person  who  appeared 
to  be  the  tenant  of  the  house,  and  resembled  the  prisoner,  paid  for  them. 
He  is  asked  if  the  order  for  the  arms  was  not  in  writing,  and  if  he  ever 
saw  the  prisoner  before,  unless  the  person  who  paid  for  the  arms  was 
the  prisoner  ;  he  is  asked  whether  the  prisoner  was  the  person  who 
paid  for  the  arms;   but  he  cannot  swear  to  his  identity.      Then  an  objec- 
tion is  made,  that  the  order  shonld  be  produced,  and  proved  to  be  in  the 
hand-writing  of  the  prisoner.     The  judge  says,  as  he  must  do,  these 
arms  are  sent  to  a  house  of  which  the  prisoner  is  tenant;  they  are  proved 
to  be  paid  for  at  the  time  by  a  person  who  appeared  to  be  the  occupier, 
and  wlio  resembles  the  man  at  the  bar:  the  judge  adds,  that  this  is  evi- 
dence from  which  the  jury  may  infer  that  the  prisoner  was  the  person 
who  bought  the  arms,      'i'he  prisoner  is  convicted;  and  on  further  in- 
quiry the  lease  and  letter  to  the  Birmingham  manufacturer  are  produced, 
and  it  appears  by  the  lease,  that  the  house  was  let  to  the  prisoner's  bro- 
ther, who  strongly  resembled  the  prisoner,  and  the  letter  to  the  Bir- 
mingham manufacturer  of  arms  is  written  by  that  brother  in  his  own 
name,  and  not  in  the  name  of  the  prisoner.      Would  any  judge  venture 
to  advise  the  king  to  execute  a  prisoner  under  such  circumstances?    The 


5  Bingham,  136.  401 

government  are  placed  in  this  dilemma  by  receiving  evidence  like  that 
on  which  the  plaintiffs'  case  rests.  Notwithstanding  the  difference  that 
there  is  between  the  importance  of  the  inquiry  in  the  criminal  and  the 
civil  courts,  the  rules  of  evidence  are  the  same  in  both.  I  should. not 
hesitate  on  principle  alone,  unsupported  by  any  previous  determination, 
to  say  that  you  cannot  prove  any  of  the  contents  of  a  lease  or  contract, 
but  by  the  lease  or  contract:  the  contract  must  be  shewn. 

The  rule  of  law  relative  to  the  proof  of  the  contents  of  written  instru- 
ments is  laid  down  with  great  clearness  by  Lord  Tenterden  in  the  House 
of  Lords,  in  the  Queen's  case,  2  B.  &  B.  286:  <'  The  contents  of  every 
written  paper  are,  according  to  the  ordinary  and  well  established  rules 
of  evidence,  to  be  proved  by  the  paper  itself,  and  that  alone,  if  the 
paper  be  in  existence."  Let  us  see  how  this  principle  has  been  acted 
upon  in  the  cases  which  have  come  before  the  Court  In  Hodges  v. 
Brakeford,  1  N.  R.  271,  it  was  proved  by  a  witness  that  the  defendant 
had  advertised  his  shop  to  be  let,  and  that  the  advertisement  stated  that 
the  consumption  of  the  shop  amounted  to  fifteen  sacks  of  flour  per  week: 
some  witness  proved  that  the  defendant  said  that  the  shop  did  business 
to  the  extent  stated  in  the  advertisement,  and  that  there  was  an  agree- 
ment in  writing.  The  Court  held,  that  as  the  agreement  on  which  the 
action  was  brought  was  in  writing,  the  plaintiff  could  not  make  out  his 
case  without  producing  that  agreement.  Brewer  v.  Palmer  is  but  a 
Nisi  Prius  case;  but  it  was  decided  by  one  of  the  most  eminent  Judges 
that  ever  sat  in  Westminster  Hall,  and  is  quoted  with  approbation  by 
every  writer  on  the  law  of  evidence.  It  was  confirmed  afterwards  in 
banco,  and  has  been  subsequently  acted  upon.  That  was  an  action  for 
use  and  occupation;  there  was  an  unstamped  agreement  in  writing,  and 
the  plaintiff's  counsel  contended  that  he  ought  to  be  at  liberty  to  go  into 
evidence  of  the  use  and  occupation.  Lord  Eldon  held,  that  the  plain- 
tiffs were  bound,  if  there  was  a  lease,  to  produce  it  in  evidence,  as  it 
might  contain  clauses  which  would  prevent  the  plaintiff  from  recovering, 
an(l  that  therefore  it  ought  to  be  produced.  So  in  the  present  case,  the 
contract,  if  produced,  might  have  shewn  that  the  plaintiffs  had  no  right 
to  recover  in  this  action.  The  case  of  Brewer  v.  Palmer  is  confirmed 
by  the  case  oi  Ramshotlom  v.  Turner,  2  M.  &  S.  4.34,  and  has  always 
been  acted  on.  In  JJoc  d.  Sir  Mark  JVood  v.  Morn's  the  landlord 
having  proved  payment  of  rent  by  the  defendant,  and  half  a  year's  no- 
tice to  quit,  a  witness  said  there  had  been  an  agreement  in  writing  re- 
lating to  these  lands,  but  not  to  the  existing  tenancy  between  the  plain- 
tiff and  the  defendant;  and  a  verdict  was  given  for  the  lessor  of  the 
plaintiff.  Upon  a  motion  to  set  it  aside,  Lord  Elknhorough,  in  giving 
judgment,  makes  use  of  these  words:  "  How  can  we  say  that  the  plain- 
tiff ought  to  have  been  nonsuited  for  want  of  giving  the  best  evidence  of 
the  tenancy,  uidess  it  appeared  there  was  other  and  better  evidence  of 
it  in  an  agreement?"  Lord  Ellenhorongh  in  that  case  recognizes  the 
principle  that  the  best  evidence  of  a  tenancy  is  the  agreement;  but  iti 
that  case  there  was  no  proof,  as  there  is  in  this,  that  there  was  any 
agreement  ap|)licable  to  the  existing  tenancy.  If  Lord  BUcnhorough 
and  the  Court  of  King's  Bench  had  been  called  on  to  decide  this  case, 
instead  of  the  one  which  was  before  them,  in  which  it  did  not  appear 
that  the  agreement  related  to  the  existing  tenancy,  they  must,  to  have 
been  consistent,  have  decided  that  in  this  rase  the  agreement  relating  to 
the  existing  tenancy  ought  to  be  produced. 

VOL.  XV.  •'51 


10  >  SiKoTiiKR  V.  Baur.  T.  T.  1828. 

The  case  of  Cotterillv.  Hobby,  is  in  my  opinion  also  decisive  on 
tlie  point.  The  declaration  stated,  that  at  the  time  of  the  grievance 
complained  of,  a  certain  close,  situate,  &c.  was  in  the  possession  and  oc- 
cupation of  one  H.  C.  Morgan  as  tenant  thereof  to  the  plaintifl'.  It  was 
an  action  for  an  injury  to  the  reversion,  the  defendant  having  cut  down 
a  quantity  of  branches  from  certain  trees  then  standing  and  growing  in 
and  upon  the  said  close.  There  was  a  second  count  in  trover  for  the 
timber.  Plea,  the  general  issue.  At  the  trial  before  Garrow  B.,  Mor- 
gan was  called  as  a  witness  for  the  plaintiff,  and  proved  that  he  was 
tenant  to  the  plaintiff  of  the  close  in  question  under  a  written  agree- 
ment: that  defendants  lopped  some  branches  off  the  trees  growing  there, 
and  carried  them  away.  No  evidence  of  the  value  was  given.  For 
the  defendant,  it  was  objected,  tliat  the  agreement  under  which  Mor- 
gan held  should  have  been  produced,  for  that  it  could  not  otherwise  ap- 
pear that  the  plaintiff  was  reversioner  of  the  trees.  My  Brother  Bay- 
ley  in  giving  the  judgment  of  the  Court  says,  "  It  having  been  shewn 
that  Morgan  held  under  a  written  agreement,  I  am  of  opinion  that  the 
terms  of  holding  could  only  be  proved  by  that  instrument,  and,  conse- 
quently, that  the  verdict  on  the  first  count  cannot  be  sustained."  I  can- 
not distinguish  that  case  from  the  present.  It  appears  to  me  that  case 
is  supported  by  principle;  it  is  supported  by  a  variety  of  previous  au- 
thorities which  can  be  traced  back  to  remote  periods.  There  is  a  series 
of  decisions,  one  following  the  other,  each  agreeing  with  the  other,  all 
recognizing  the  general  rule  upon  which  I  put  this  case;  but  unfortu- 
nately they  are  inconsistent  with  the  one  I  am  now  coming  to,  which 
was  decided  by  my  Brother  Bayley,  and  is  at  variance  with  his  other 
decision.  The  last  case  upon  the  subject  is  The  Kins;  v.  The  Inhabit- 
ants of  the  Holy  Trinity,  Hull,  which  was  decided  by  the  three 
Judges  of  the  King's  Bench,  and  they  held  that  parol  evidence  of  a 
pauper  having  been  tenant  was  admissible,  although  the  pauper  held  un- 
der a  written  agreement.  There  is  a  variance  between  this  case  and 
the  last  preceding  case,  where  it  was  decided  by  the  same  Court,  that 
parol  evidence  of  a  tenancy  was  not  admissible  if  a  written  agreement 
existed.  During  the  argument,  Mr.  Justice  Bayley  is  reported  to  have 
said,  the  appellants  did  not  enquire  into  the  terms  of  the  contract  or 
written  agreement,  but  whether  the  pauper  had  or  had  not  been  tenant 
of  the  premises.  Surely  this  was  enquiring  into  the  contents  of  the 
written  agreement,  which  ought  to  have  been  produced,  as  it  would 
describe  the  tenancy  between  the  parties,  and  the  premises  in  respect 
of  which  they  were  enquiring.  The  same  learned  Judge  says,  "  the 
terms  of  the  tenancy  and  the  amount  of  the  rent  could  only  be  proved 
by  the  production  of  the  agreement.  But  the  rule  of  law  does  not  go 
so  far  as  to  prevent  the  admission  of  parol  evidence  of  the  fact,  that 
the  relation  of  landlord  and  tenant  existed  between  particular  parties  at 
a  particular  time,  in  a  particular  parish."  The  learned  Judge  admits, 
that  you  cannot  prove  the  amount  of  rent  by  parol  evidence;  that  the 
agreement  is  the  best  evidence  of  this.  Is  it  not  eriuall}-  the  best 
evidence  of  who  were  the  parties  to  it,  and  for  what  time  the  relation 
of  landlord  and  tenant  continued  ?  These  are  the  contents  of  the  agree- 
ment, as  much  as  the  amount  of  rent.  There  is  more  probability  of 
mistake  in  the  statement  of  these  facts  than  in  the  statement  of  the 
amount  of  rent.  These  arc  complicated  facts,  as  to  which  the  most  ac- 
curate witness   may  be  mistaken;  as  to  the  amount  of  rent,  he  cannot 


5  Bingham,  136.  403 

mistake  if  he  pays  it  often.  Parol  evidence  of  tlie  amount  of  rent, 
therefore,  is  excluded,  not  hccause  amount  is  difficult  of  proof,  but  be- 
cause parol  evidence  is  not  tlie  best  proof.  It  is  equally  not  the  best 
proof  of  every  other  fact  stated  in  the  contract.  I  cannot  agree  to  a 
decision,  much  as  I  respect  the  learned  Judges  who  decided  it,  which  is 
at  variance  with  the  case  before  decided  by  the  same  Judges;  in  which 
distinctions  are  made  between  things  which  admit  of  no  real  distinction; 
which  is  inconsistent  with  every  other  case  in  the  books  ;  and  tends  to 
fritter  away  a  rule  of  evidence  essential  to  the  security  of  property,  of 
character,  and  of  life.  The  learned  Judge  who  tried  this  case  must 
liave  doubted  the  propriety  of  the  decision  in  the  The.  King  v.  The 
Inhahilants  of  the  Holy  Trinity,  Hull,  or  he  would  not  have  re- 
served this  point;  for  it  is  not  the  practice  of  Judges  where  a  question 
has  been  decided,  and  they  subscribe  to  tlie  doctrine  of  the  decision, 
to  reserve  the  point  for  the  opinion  of  the  Court.  I  think  the  rule  for 
a  nonsuit  should  be  made  absolute;  but  two  learned  Judges  differing 
from  the  others,  and  the  Court  being  equally  divided,  this  rule  falls  to 
the  yrround. 


MARTIN,  Demandant;  BAXTER,  Tenant;  GRIJBB  and  Wife, 
V'ouchees. — p.  IGO. 

1.  In  taxing  the  costs  upon  a  mortgage  transaction,  the  mortgagee  is  not  allowed 
the  expense  of  a  declaration  of  tinist  from  him  to  a  cestui  que  trust  who  lends 
the  money. 

2.  Tlie  assignment  of  a  mortgage  must  have  an  ad  valorem  stamp,  if  it  be  ac- 
companied with  any  new  security,  or  any  additional  sum  be  advanced. 


(HOUSE  OF  LORDS.) 

Sir  ROBERT  (llFFORl),  Appellant;. 

'I'he  Right  Honourable  Lord  >  ,,  i     .    /   \  i  /  o 

YARnOROnon,     -         -  S  I^^spondent.  (r/)-p.  103. 

Land,  not  siiddcnly  derelict,  but  formed  l)v  alluvion  of  the  sea,  imperceptible  in 
progress,  belongs  to  the  owner  of  the  adjoining  demesne  lands,  and  not  to  the 
crown. 

Bf;sT  C.  J.  My  lords,  tlic  (piestion  which  your  lordships  have  pro- 
posed for  the  opinion  of  tlie  Judges  is  as  foUovvs: — "A.  is  seised  in  his 
tiemosne  as  of  fee  of  the  manor  of  N.,  and  of  the  demesne  lands  there- 
of, which  said  demesne  lands  were  formerly  bounded  on  one  side  by 
the  sea.  A  certain  [liece  of  lan«l,  consisting  of  about  450  acres,  by  the 
slow,  gradual,  and  imperceptible  ])rojeclion,  alluvion  subsidence,  and 
accretion  of  ooze,  soil,  sand,  and  matter  slowly,  gradually,  and  imperccpti- 
f)ly,  and  by  imijcrccptiblc  increase  in  long  time  cast  u|),  deposited,  and 
settled  by  and  from  flux  and  reflux  of  the  tide,  and  waves  of  the  sea  in, 

(«)  The  facts  and  argumcntb  in  this  case,  and  the  decision  of  the  Court  of 
King's  Bench,  air  in  '.  B.  &C.  'Jl. 


404       GiFFORi)  V.  Lord  Yarhouough.   T.  T,  1828. 

upon,  and  against  Ihc'outside  and  extremity  of  the  said  demesne  lands 
hath  been  formed,  and  hath  settled,  grown,  and  accrued  upon,  and 
against,  and  unto  the  said  demesne  lands.  Does  such  piece  of  land  so 
formed,  settled,  grown,  and  accrued  as  aforesaid,  belong  to  the  Crown 
or  to  A.,  the  owner  of  the  said  demesne  lands  ?  There  is  no  local  cus- 
tom on  the  subject." 

The  Judges  have  desired  me  to  say  to  your  lordships  that  land  grad- 
ually and  imperceptibly  added  to  the  demesne  lands  of  a  manor,  as 
stated  in  the  introduction  to  your  lordships'  question,  does  not  belong 
to  the  crown,  but  to  the  owner  of  the  demesne  land. 

All  the  writers  on  the  law  of  England  agree  in  this:  that  as  the  King 
is  lord  of  the  sea  that  flows  around  our  coasts,  and  also  owner  of  all 
the  land  to  which  no  individual  has  acquired  a  right  by  occupation  and 
improvement,  the  soil  that  was  once  covered  by  the  sea  belongs  to  him. 

But  this  right  of  the  sovereign  might,  in  particular  places,  or,  under 
circumstances,  in  all  places  near  the  sea,  be  transferred  to  certain  of  his 
subjects  by  law.  A  law  giving  such  rights  may  be  presumed  from 
either  a  local  or  general  custom,  such  custom  being  reasonable,  and 
proved  to  have  existed  from  time  immemorial.  Such  as  claim  under 
the  former  must  plead  it,  and  establish  their  pleas  by  proof  of  the  ex- 
istence of  such  a  custom  from  time  immemorial. 

General  customs  were  in  ancient  times  stated  in  the  pleadings  of  those 
who  claimed  under  them:  as  the  custom  of  merchants,  the  customs  of 
the  realm  with  reference  to  innkeepers  and  carriers,  and  others  of  the 
same  description.  But  it  has  not  been  usual  for  a  long  time  to  allude 
to  such  customs  in  the  pleadings,  because  no  proof  is  required  of  their 
existence;  they  are  considered  as  adopted  into  the  common  law,  and  as 
such  are  recognized  by  the  Judges  without  any  evidence.  These  are 
called  customs,  because  they  only  apply  to  particular  descriptions  of 
persons,  and  do  not  affect  all  the  subjects  of  the  realm;  but  if  they  go- 
vern all  persons  belonging  to  the  classes  to  which  they  relate,  they  are 
to  be  considered  as  public  laws;  as  an  act  of  parliament  applicable  to 
all  merchants,  or  to  the  whole  body  of  the  clergy,  is  to  be  regarded  by 
the  Judges  as  a  public  act. 

If  there  is  a  custom  regulating  the  right  of  the  owners  of  all  lands 
bordering  on  the  sea,  it  is  so  general  a  custom  as  need  not  be  set  out  in 
the  pleadings  or  proved  by  evidence,  but  will  be  taken  notice  of  by 
the  Judges  as  part  of  the  common  law.  We  think  there  is  a  custom 
by  which  land  from  v/hich  the  sea  is  gradually  and  imperceptibly  re- 
moved by  the  alluvion  of  soil,  becomes  the  property  of  the  person  to 
whose  land  it  is  attached,  although  it  has  been  the  fundus  maris,  and  as 
such  the  property  of  the  King.  Such  a  custom  is  reasonable  as  regards 
the  riglits  of  the  King,  and  the  subjects  claiming  under  it;  beneficial 
to  the  public;  and  its  existence  is  established  by  satisfactory  legal 
evidence. 

There  is  a  great  difference  between  land  formed  by  alluvion,  and  de- 
relict land.  Land  formed  by  alluvion  must  become  useful  soil  by  de- 
grees too  slow  to  be  perceived:  little  of  what  is  deposited  by  one  tide 
will  be  so  permanent  as  not  to  be  removed  by  the  next.  An  embank- 
ment of  a  sufficient  consistency  and  height  to  keep  out  the  sea  must  be 
formed  imperceptibly.  But  the  sea  frequently  retires  suddenly,  and 
leaves  a  large  space  of  land  uncovered. 

When  the  authorities  relative  to  these  subjects  are  considered;  this 


5  Bingham,    163.  405 

difference  will  be  found  to  make  a  material  distinction  in  the  law  that 
applies  to  derelict  lands,  and  to  such  as  are  formed  by  alluvion.  Un- 
less trodden  by  cattle,  many  years  must  pass  away  before  lands  formed 
by  alluvion  would  be  hard  enough  or  sufiiciently  wide  to  be  used  bene- 
ficially by  any  one  but  the  owner  of  the  lands  adjoining.  As  soon  as 
alluvion  lands  rise  above  the  water,  the  cattle  from  the  adjoining  lands 
will  give  them  consistency  by  treading  on  them;  and  prepare  them  for 
grass  or  agriculture  by  the  manure  which  they  will  drop  on  them. 
When  they  are  but  a  yard  wide  the  owner  of  the  adjoining  lands  may 
render  them  productive.  The  lands  which  are  of  no  use  to  the  King 
will  be  useful  to  the  owner  of  the  adjoining  lands,  and  he  will  acquire 
a  title  to  them  on  the  same  principle  that  all  titles  to  lands  have  been 
acquired  by  individuals,  viz.  by  occupation  and  improvement. 

Locke  in  a  passage  in  his  Treatise  on  Government,  in  which  he  de- 
scribes the  grounds  of  the  exclusive  right  of  property,  says:  "  God  and 
man's  reason  commanded  him  to  subdue  the  earth;  that  is,  improve  it 
for  the  benefit  of  life,  and  therein  lay  out  something  upon  it  that  was 
his  own,  his  labour.  He  that  in  obedience  to  that  command  subdued, 
tilled,  and  sowed  any  part  of  it,  thereby  annexed  to  it  something  that 
was  his  property  which  another  had  no  title  to,  nor  could  without  in- 
jury take  from  him." 

This  passage  proves  the  reasonableness  of  the  custom  that  assigns 
lands  gained  by  alluvion  to  the  owner  of  the  lands  adjoining. 

The  reasonableness  is  further  proved  by  this,  that  the  land  so  gained 
is  a  compensation  for  the  expense  of  embankment,  and  for  losses  which 
frequently  happen  from  inundation  to  the  owners  of  lands  near  the  sea. 

This  custom  is  beneficial  to  the  public.  Much  land  which  would  re- 
main for  years,  perhaps  for  ever,  barren,  is  in  consequence  of  this  cus- 
tom rendered  productive  as  soon  as  it  is  formed.  Although  the  sea  is 
gradually  and  imperceptibly  forced  back,  the  land  formed  by  alluvion 
will  become  of  a  size  proper  for  cultivation  and  use;  but  in  the  mean 
time  the  owner  of  the  adjoining  lands  will  have  acquired  a  title  to  it  by 
improving  it. 

'i'he  original  deposit  constitutes  not  a  tenth  part  of  its  value,  the 
other  nine-tenths  are  created  by  the  labour  of  the  person  who  has  occu- 
pied it;  and,  in  the  words  of  Locke,  the  fruits  of  his  labour  cannot, 
without  injury,   be  taken  from  him. 

The  existence  of  this  custom  is  established  by  legal  evidence.  In 
liracton,  book  2.  cap.  2,,  there  is  this  passage:  "Item,  quod  per  allu- 
vionem  agro  tuo  flumen  adjecit,  jure  gentium  tibi  acquiritnr.  Est  au- 
tcm  alluvio  latens  incremcntum;  et  per  alluvionem  adjeci  dicitur  quod 
ita  paulatitn  adjicitur  fiuod  intclligerc  non  possis  f|U0  momento  temporis 
adjiciatur.      Si  autem  non  sit  latens  incremcntum,  contrarium  crit." 

In  a  treatise  which  is  published  as  the  work  of  Lord  Hale,  treating 
of  this  passage,  it  is  said:  "that  I?racton  follows  in  this  the  civil  law 
writers;  and  yet  even  according  to  this  (he  common  law  doth  regularly 
hold  between  parties.  But  it  is  doubtful  in  case  of  an  arm  of  the 
sea.(a)  It  is  true  that  Bracton  follows  the  civil  law,  for  the  passage 
above  quoted  is  to  be  found  in  the  jtamc  words  in  the  Institute,  lib.  2. 
tit.  1.  s.  20.  But  Hr.'icton,  by  inserting  this  passage  in  his  hook  on  the 
laws  and  customs  of  Kngland,  presents  it  to  us  as  part  of  those  laws  and 

(r;  I  n.ilr  ri.-   imc   Mali'.,    ])    I'K. 


406         (liFFOiii)  V.  Lord  Yaubouough.    T.  T.  1828. 

customs.  Loiil  Hale  admits  that  it  is  the  law  of  England  in  cases  be- 
Iwoen  subject  and  subject;  and  it  would  be  diilicult  to  lind  a  reason  why 
tlie  same  question  between  the  crown  and  a  subject  should  not  be  de- 
cided by  the  same  rule.  Bracton  wrote  on  the  law  of  England,  and  the 
situai:on  which  he  fdled,  namely,  that  of  Chief  Justice  in  the  reign  of 
Henry  the  Third,  gives  great  authorit}'  to  his  writings.  Lord  Hale  in 
liis  History  of  the  Common  Law  (cap.  7.),  says,  that  it  was  much  im- 
proved in  the  time  of  Braclon.  This  improvement  was  made  by  in- 
cori)oraling  nuicli  of  the  civil  law  with  the  common  law. 

We  know  that  many  of  the  maxims  of  the  common  law  are  borrowed 
from  the  civil  law,  and  are  still  quoted  in  the  language  of  the  civil  law. 
Notwithstanding  the  clamour  raised  by  our  ancestors  for  the  restoration 
of  the  laws  of  Edward  the  Confessor,  I  believe  that  these  and  all  the 
Norman  customs  which  followed  would  not  have  been  sufficient  to 
form  a  system  of  law  sufficient  for  the  state  of  society  in  the  times  of 
Henry  the  Third.  Both  courts  of  justice  and  law  writers  were  obliged 
to  adopt  such  of  the  rules  of  the  digest  as  were  not  inconsistent  with 
our  principles  of  jurisprudence.  Wherever  Bracton  got  his  law  from, 
Lord  Chief  Baron  Parker,  in  Fortescue408,  says,  "as  to  the  authority 
of  Bracton,  to  be  sure  many  things  are  now  altered,  but  there  is  no 
colour  to  say  it  was  not  law  at  that  time.  There  are  many  things  that 
have  never  been  altered,  and  are  now  law."  The  laws  must  change 
with  the  state  of  things  to  which  they  relate;  but,  according  to  Chief 
Baron  Parker,  the  rules  to  be  found  in  Bracton  are  good  now  in 
all  cases  to  which  those  rules  are  applicable.  But  the  authority  of 
Bracton  has  been  confirmed  by  modern  writers,  and  by  all  the  decided 
cases  that  are  to  be  found  in  the  books.  The  same  doctrine  that  Brac- 
ton lays  down  is  to  be  found  in  2  Roll's  Abr.  170;  in  Com.  Dig.  tit. 
Prerogative,  (D.  61.);  in  Callis,  (Broderip^s  edition,)  p.  51;  and  in  2 
Blac.  Com.  261. 

In  the  case  of  the  Abbot  of  Peterborough,  Hale  de  jure  Maris,  p. 
29,  it  was  holden:  "quod,  secundum  consuetudincm  patriae,  domini 
maneriorum  propc  mare  adjacentium,  habebunt  marettum  et  sabulonem 
per  fluxus  et  refluxus  maris  per  temporis  incrcmentum  ad  terras  suas 
costerse  maris  adjacentes  projecta."  In  the  treatise  of  Lord  Hale  it  is 
said,  "  here  is  custom  laid,  and  he  relies  not  barely  on  the  case  with- 
out it."  But  it  is  a  general,  and  not  a  local  custom,  applicable  to  all 
lands  near  the  sea,  and  not  to  lands  within  any  particular  district.  The 
pleadings  do  not  state  the  lands  to  be  within  any  district,  and  such  a 
statement  would  have  been  necessary  if  the  custom  pleaded  were  local. 
The  consuetudo  patriae  means  the  custom  of  all  parts  of  the  country  to 
which  it  can  be  applied;  that  is,  in  the  present  case,  all  such  parts  as 
adjoin  the  sea. 

The  case  of  The  Kirig  v.  Oldsworth{a)  confirms  that  of  the  Abbot 
of  Peterborough  as  to  the  right  of  the  owner  of  the  adjoining  lands  to 
such  lands  as  were  "secundum  majus  et  minus  prope  tenementa  sua 
projecta."(6)  That  case  was  decided  against  the  owner,  because  he 
also  claimed  derelict  lands  against  the  crown. 

Here  it  will  be  observed  that  there  is  a  distinction  made  between 
lands  derelict  and  lands  formed  by  alluvion:  which  distinction,  I  think, 
is  founded  on  the  principle  that  1  have  ventured  to  lay  down,  namely, 

(«)Hale  de  jure  Maris,  p.  It.  (6)  Id.  p.  29. 


5  Bingham,  163.  407 

that  alluvion  must  be  gradual  and  imperceptible,  but  the  dereliction  of 
land  by  the  sea  is  frequently  sudden,  leaving  at  once  large  tracts  of  its 
bottom  uncovered,  dry,  and  fit  for  the  ordinary  purposes  for  which 
land  is  used.  But  still  what  was  decided  in  this  case  is  directly  appli- 
cable to  the  question  proposed  to  us.  The  Judges  arc,  therefore,  war- 
ranted by  justice,  by  public  policy,  by  the  opinions  of  learned  writers, 
and  the  authority  of  decided  cases,  in  giving  to  your  Lordships'  ques- 
tion the  answer  which  they  have  directed  me  to  give. 

My  Lords,  the  answer  to  your  Lordships'  question  is  the  unanimous 
opinion  of  all  the  Judges  who  heard  the  arguments  at  your  Lordships' 
bar.  For  the  reasons  given  in  support  of  that  opinion  I  alone  am  re- 
sponsible. JNIost  of  my  learned  Brothers  were  obliged  to  leave  town 
for  their  respective  circuits  before  I  could  write  what  I  have  now  read 
to  your  Lordships.  I  should  have  spared  your  Lordships  some  trouble 
if  I  had  had  time  to  compress  my  thoughts;  but  I  am  now  in  the  midst 
of  a  very  heavy  Nisi  Prius  sittings,  and  am  obliged  to  take  from  the 
hours  necessary  for  repose  the  time  that  I  have  employed  in  preparing 
this  opinion.  If  it  wants  that  clearness  of  expression  which  is  proper 
for  an  opinion  to  be  delivered  by  a  Judge  to  this  House,  I  hope  that 
your  Lordships  will  consider  what  I  have  stated  as  a  sufficient  apology 
for  this  defect. 

The  Lord  Chancellor.  M}'^  Lords,  I  beg  to  express  my  thanks 
to  the  learned  Chief  Justice,  and  to  the  Judges,  for  the  attention  they 
have  paid  to  this  subject;  and  I  have  only  to  add  that  I  entirely  concur 
in  the  conclusion  at  which  tliey  have  arrived;  and  I  would  recommend  to 
your  Lordships,  as  a  necessary  consequence  of  the  opinion  which  has 
been  expressed,  that  the  judgment  of  the  Court  of  King's  Bench  upon 
the  matter  should  be  affirmed. 

Earl  of  Eldon.  INIy  Lords,  I  heard  only  part  of  the  argument, 
and  therefore  I  have  some  difficulty  in  stating  my  opinion  in  this  case; 
but  having  had  my  attention  called  to  sul)jects  of  the  same  nature  on 
former  occasions,  it  does  appear  to  me,  I  confess,  after  reading  the 
finding  of  the  jury,  that  the  opinion  of  the  Judges  must  be  that  which 
the  learned  Chief  Justice  has  now  expressed.  I  therefore  concur  in 
the  opinion  the  Lord  ('hicf  Justice  has  expressed. 

Judgment  affirmed. 


KNl)    01'    TltlNlTV    TKIIAf. 


CASES 

ARGUED  AND  DETERMINED 

IN    THE 

COURT  OF    COMMON   PLEAS, 

AND  OTHER  COURTS, 

IN 

MICHAELMAS  TERM, 

In  the  Ninth  Year  of  the  Reign  of  George  IV.— 1828. 


GULLY  and  Others  v.  BISHOP  of  EXETER  and  COWLING.— 

p.  171. 

1.  Where  a  bishop  has  omitted  to  present  to  a  living  lapsed  to  him  for  want  of 
presentation  within  six  months,  a  party  who  may  present,  if  the  bishop  omits  to 
do  so,  is  not  a  competent  witness  for  one  who  claims  in  the  same  right  as  such 
party. 

2.  A  conveyance  of  a  fourth  part  of  an  advowson  in  1672,  is  not  to  be  deemed 
voluntary,  because  the  only  pecuniary  consideration  expressed  in  the  deed  is 
twenty  shillings. 

3.  An  answer  in  Chancery,  touching  an  advowson,  filed  by  one  who  had  been  seised 
of  the  advowson,  twenty  years  after  he  had  conveyed  it  away,  Held,  not  admis- 
sible in  evidence  against  a  party  who  claimed  the  advowson  through  him. 


VALE  and  Others,  Vouchees. — p.  176. 

"Where  one  of  the  vouchees  became  insane  between  the  time  of  executing  the  war- 
rant of  attorney  and  the  passing  of  the  recovery,  the  Court  refused  to  let  it  pass 
as  to  him,  but  permitted  it  as  to  the  other  parties. 


MACKIEv.  WARREN.— p.  17G. 

The  Court  will  not  discharge  a  defendant  from  custody  under  a  ca.  sa.  on  the 
ground  that  he  has  been  l)cfore  irregularly  taken  and  discharged  under  criminal 
process  at  the  instance  of  the  plaintiff. 

Ludlow  Serjt.  moved  for  a  rule  nisi  to  discharge  the  defendant 
from  custody  under  a  ca.  sa.  in  this  suit,  on  the  ground,  that  some 
weeks  before,  he  had  been,  at  the  instance  of  the  plaintiff,  apprehended 
under  criminal  process,  irregularly  issued,  and  then  set  at  large,   upon 


5  BiXGHAM,  177.  409 

the  irregularity  being  discovered,  the  plaintiffpaying  the  costs.  Ludlow 
urged,  that  the  defendant  could  not  have  been  retaken  if  he  had  been 
discharged  after  arrest  on  a  ca.  sa.,  and  that  he  ought  to  be  equally 
exempt  after  discharge  from   the  criminal  process.     But 

The  Court,  admitting,  that  if  the  defendant  had  been  discharged  after 
he  had  been  once  regularl\- taken,  he  could  not  be  taken  again  for  the 
same  cause,  refused  the  rule,  on  the  ground  that  the  first  taking  here  was 
altogether  irregular;  and  Ludlow 

Took   nothing. 


CHURCHILL  and  Another,  Assignees  of  CADOGAN,  a  Bankrupt, 
V.  CREASE— p.  177. 

].  A  payment  made  in  June  1825  by  a  debtor,  bona  fide,  without  intention  of 
fraudulent  preference,  eight  days  before  a  commission  of  bankrupt  was  issued 
against  him.  Held  to  Ije  protected  under  the  eightv- second  section  of  6  G.  4. 
c.  16. 

2.  The  debtor,  a  prisoner,  went,  eight  days  before  a  commission  of  bankrupt  was 
sued  out  against  }iim,  to  a  fire-office,  to  receive  money,  payable  to  him  in  respect 
of  a  loss  by  fire;  ti  creditor,  for  labour  done,  who  knew  the  time  when  the 
money  was  to  be  paid,  without  any  intimation  from  the  debtor,  met  him  at  the 
office,  and  obtained  out  of  the  sum  so  received,  payment  of  his  own  debt,  not 
knowing  that  his  debtor  was  a  prisoner  or  insolvent,  a  jury  having  negatived 
fraud.  Held,  that  this  was  not  a  fradulent  preference  by  the  debtor, 


HENMAN  v.  DICKINSON.— p.  1S3. 

Where  a  party  sues  on  an  instnimcnt  which,  on  the  faCe  of  it,  appears  to  have 
f)cen  altered,  it  is  for  iiim  to  siicw  that  tlic  alteration  has  not  been  improperly 
made. 

This  was  an  action  brought  to  recover  the  amount  of  a  hill  of  exchange, 
purporting  to  have  been  drawn  Ihc  2f)th  of  Febi'uary  IS^S,  for  i!)/.  17.v. 
6r/.  by  one  (ieorj!,c  Potter,  ace  :pted  by  the  defendant,  and  iiulorsed  to 
the  plaintitr,  but  ap[)t;aring  on  tiie  face  of  it  to  have  undergone  altera- 
tion. 

On  the  trial  of  the  cause  before  Beat  C,  J.  London  sittings  after  Trinity 
term,  the  wife  of  the  drawer  stated  that  the  bill  was  drawn  on  the'^Ud 
February  IS28,  that  it  was  acce|)led  oti  the  22(1,  for  -10/.  17.v.  Hr/.,  and 
Potter  in  her  presence  altered  the  bill  to  ■V)L  17.9.  Hr/.  alioiit  ci-rht  days 
bsfore  be  indorsed  Jt  to  the  plaintili'.  'I'liis  evidence  was  objecletl  to, 
and  the  point  was  reserved;  but.  the  learned  ('biff  .Justice  tbinkinu;,  that 
where  there  a|)peared  an  alteration  on  tiie  face  of  a  bill  of  excliaiij;(',  the 
onus  of  proof  to  shew  that  such  alteration  had  not  been  made  since  it  was 
aecejited,  lay  with  the  plaintili,  a  verdict  was  fQund  for  the  deleiidani, 
with  leave  for  the  plaintifTto  move  to  set  it  asidef 

7'c/(^A/// Serjt.  now  moved  accordingly,  on  the  ground  that  Mrs.  Potter 
bad  proved  a  forgery,  and  that  a  wife  could  not  be  pcrmittcii  to  give  evi- 
denfe  to  crimimle  her  husliand.  /I'r.r  v.  Ct{iu'ii;rr,2'V.  U,  2fi3.  [Park 
.T.  Iti  Hex  V. ./?//  Sui7i/\,  ffWres/rr,  1  rliill.  Ev.  82,  the  ('oiu-t  of  Kinj^'s 
Pji-nrh  were  of  o|)inion,  Ibal  the  ride  laid  down  in  /iV.v  v.  Cliri^^rr,  wa.s 
ton  Inige  and  general.]      ]\f  then  urired  that  a  pirly  wlin  produres  a  bill 

Vol..   XV.  52 


410  Cox  V.  Bknt.  M.  T.  1828. 

%vith  an  alteration  apparent  on  the  face  of  it,  ought  not  to  be  called  on  lo 
shew  that  tiie  alteration  was  made  before  acceptance;  but  that  the  onus 
of  shewing  that  it  was  improperly  made  after  acceptance  ought  to  be 
thrown  on  the  defendant,  for  an  innocent  indorsee  has  no  means  of 
knowing  when  or  how  such  an  alteration  was  made. 

Best  C.  J,  It  is  not  necessary  for  us  to  decide  the  first  point:  if  it 
were,  it  would  require  consideration,  because  the  authority  of  Bex  V. 
Cliviger  has  been  doubted.  But  we  are  of  opinion,  that  where  an  alter- 
ation appears  upon  the  face  of  a  bill,  the  party  producing  it  must  shew 
that  the  alteration  was  made  with  consent  of  parties,  or  before  the  issu- 
ing the  bill. 

Park  J.  Where  the  plaintiff  sues  on  an  instrument  which  has  mani- 
festly been  altered,  it  is  for  him  to  shew  that  the  alteration  was  not  im- 
properly made.  I  am  sure  this  has  been  decided,  and  good  sense  points 
out  that  it  ought  to  be  so,  because  the  defendant  can  have  no  means  of 
knowing  the  circumstances  of  a  subsequent  alteration. 

The  rest  of  the  Court  concurredj  and  Tciddy 

Took  nothing. 


COX  V.  BENT  and  Others.— p.  185. 

Plaintiff,  who  had  entered  on  premises  under  an  agreement  for  a  lease,  admitted 

a  charge  of  half  a  year's  rent  in  an  account  between  him  and  his  landlord: 
Held,  that  this  constituted  him  a  tenant  from  year  to  year,  and  liable  to  distress. 

Replevin  for  taking  the  plaintiff's  goods  in  a  place  called  the  New- 
castle Brewery. 

Avowry,  that  the  plaintiff  for  a  year  ending  March  25,  1827,  held  the 
Newcastle  Brewery  as  tenant  to  the  defendants,  by  virtue  of  a  demise 
thereof  to  him,  at  the  yearly  rent  of  450/.,  payable  half-yearly  on  25th 
March  and  29th  September,  and,  because  a  year's  rent  was  due,  the  de- 
fendants avowed  the  taking,  &c. 

Pleas,  non  tenuit  and  riens  in  arriere,  and  issue  thereon. 

At  the  trial  before  Guselee  J.,  last  Stafford  Summer  assizes,  it  appear- 
ed that  the  plaintiff  held  the  premises  in  question  under  an  agreement 
bearing  date  7th  December  1824,  by  which  the  defendants  agreed  to  let 
and  demise  them  to  him  "in  consideration  of  the  rent  of  450/.,  and 
of  the  covenants  and  agreements  to  be  entered  into  by  the  said  C.  Cox, 
in  a  certain  indenture  of  lease  to  be  executed  on  or  before  the  29th 
day  of  September  next  ensuing."  The  plaintiff  had  paid  no  rent,  but 
an  account  of  various  dealings  between  him  and  the  defendants  had  been 
presented  to  him  by  the  defendants'  clerk,  the  first  item  of  which  vi'as, 
*'Half  a  year's  rent,  250/.;"  when  the  plaintiff  said,  *'It  is  overcharged 
25/.;"  and  the  clerk  thereupon  altered  it  to  225/.  The  account  had  been 
disputed  in  other  respects. 

The  learned  Judge  thought  that,  by  thus  assenting  to  that  item  in  the 
account,  the  plaintifl  had  admitted  a  tenancy  from  year  to  year  at  450/. 
rent,  payable  half-yearly;  and,  under  his  direction,  a  verdict  was  found 
for  the  avowants,  which 

Russell  Serjt  now  moved  to  set  aside,  and  enter  instead  a  verdict  for 
the  plaintiff.  He  relied  on  Dunk  v.  Hunter,  5  B.  &  A.  322,  as  an  au- 
thority to  shew  that  an  agreement  for  a  future  demise,  by  an  indenture 


5  Bingham,  185.  411 

of  lease,  is  incompatible  with  an  actual  demise,  and  that  without  an  ac- 
tual demise  the  avowants  could  have  no  right  to  distrain.  He  admitted 
that,  according  to  the  decision  in  Knight  v.  Benett,  3  Bingh.  361,  a 
payment  of  rent  under  such  an  agreement  would  constitute  an  acknow- 
ledgment of  a  tenancy  from  year  to  year,  under  which  the  landlord  would 
be  authorized  to  distrain.  Here  there  had  been  no  payment,  but  only 
an  admission  of  an  item  in  a  disputed  account. 

Gaselee  J.  I  proceeded  on  the  ground  that  the  admission  was 
equivalent  to  a  payment  of  so  much  rent,  and  that  the  plaintiff  had  there- 
by become  tenant  from  year  to  year. 

Best  C.  J.  This  falls  within  the  principle  established  by  Knight  v. 
Benell. 

Rule  refused. 


SEATON  V.  BENEDICT.— p.  187. 

Where  a  plaintiff  furnished  defendant's  wife  with  articles  of  dress,  which  were 
rendered  unnecessary  by  the  defendant's  having  supplied  her  wardrobe  amply, 
and  in  an  action  for  the  price  of  tlie  articles  (18A  56'.  6f/.),  the  jury  found  a  ver- 
dict for  plaintiff,  damages  10s.,  the  Judge  certified  to  deprive  him  of  costs. 

In  this  cause,  which  was  sent  down  for  a  second  trial  pursuant  to  the 
decision  ante,  p.  354,  the  jury,  upon  the  same  facts  as  are  there  stated, 
having  found  a  verdict  for  the  plaintiff  for  10.s.,  at  the  last  Middlesex 
sittings  before  Best  C.  J., 

Wilde  Serjt.  moved  to  set  aside  this  verdict,  or  that  the  learned  Judge 
wlio  presided  at  the  trial  should  certify,  to  deprive  the  plaintiff  of  his 
costs. 

The  articles  of  dress  for  which  the  action  was  brought  having  been  or- 
dered by,  and  delivered  to,  the  defendant's  wife,  and  being  unnecessary, 
the  defendant  having  amply  supplied  her  himself,  he  could  only  be  liable 
for  such  as  she  had  worn  in  his  presence  without  objection  on  his  part. 
The  amount  of  these  was  more  than  covered  by  10/.  jiaid  into  court. 
The  verdict,  therefore,  was  unintelligil)lc:  for  if  the  jury  thought  neces- 
sary the  articles  not  covered  by  the  payment  into  court,  they  should  have 
found  for  the  whole  18/.  5*.  6r/.;  and  if  ihey  were  not  necessary,  the  de- 
fendant was  entitled  to  a  verdict. 

Hest  C.  J.  I  shall  certify;  and  it  will  be  mercy  to  the  plaintiflto  do 
so:  for  the  Court  would  grant  repealed  new  trials  rather  than  allow  a 
verdict  to  j)revail  vvhicij  is  contrary  to  law  and  jiislirc. 

Kule  aljsoiulu  for  the  certificate. 


FURNEI.L  V.  THOMAS.— p    ISS. 

It  is  no  (U  fence  to  an  arti<jn  by  tl;e  owner  of  a  sliip  for  dcninrraf^o,  th.it  the  owner 
lias  niniticd  to  procure  tlic  mrcssiii  y  pa])ers  for  tlie  discharge  of  the  cargo,  if 
he  oniittfd  to  do  so  at  the  retpiest  of  ilie  delVndant. 

Af'i'ioN  by   the  j)l;iinli(T,  as  a   ship-owner,   ag;.inst    the  defend. ml,    as 
charterer,  for  demurrage. 

At  the  trial  before  Beat  (-.  .1.,  Loiulon  ^illing^  alter  Tiinily  trim,   it 


112  UooKK  V.  Wasi'.   M.  T.  1828. 

appcaiuil  lliat  llic  vessel  hail  ani\c(l  in  the  jidiI  of  JahuIod,  laden  with 
j)olatous,  the  price  of  whicii  was  ul  the  time  of  her  arrival  likely  to  fall 
ill  the  market;  whereupon  the  defendaut,  hojiing  that  in  a  few  days  the 
price  might  rise,  said  to  the  plaintitf,  "  Don't  shew  yourself,  or  you'll 
i>;et  down  the  price;"  and  the  plaintiff  accordingly  abstained  for  some 
time  to  procure  from  the  custom-house  the  papers  necessary  to  authorize 
the  unloading  of  the  cargo.  The  defence  set  up  was,  that  till  he  had 
procured  these  papers,  which  it  was  his  business  to  procure,  the  vessel 
could  not  unloail:  and  that  the  demurrage  having  thus  been  occasioned 
by  his  own  omission,  he  could  not  recover  from  the  defendant. 

The  learned  Chief  Justice  being  of  opinion  that  it  did  not  lie  with  the 
defendant  to  make  this  objection  after  he  had,  for  his  own  purposes,  re- 
quested the  plaintilF  not  to  shew  himself,  a  verdict  was  found  for  the 
plaintiff;  which 

JVilde  Serjt.  now  moved  to  set  aside,  on  tlie  ground  that  the  plaintiff 
was  bound  to  procure  the  papers  from  the  custom-house  before  he  could 
charge  the  defendant  with  delay;  Barret  v.  Dulton,  4  Campb.  333;  and 
that,  at  all  events,  the  plaintitl'  by  acquiescing  in  the  defendant's  request 
for  time,  must  be  intended  to  have  acquiesced  on  the  terms  of  not  charg- 
io":  for  demurrage.  A  mere  conversation  could  not  exonerate  the 
plaintiff  from  duties  imposed  by  law. 

Best  C,  J.  I  am  of  the  same  opinion  as  at  Nisi  Prius.  Generally 
speaking,  if  the  owner  docs  not  procure  the  necessary  papers  for  the 
clearing  or  discharge  of  the  ship,  he  cannot  claim  demurrage.  But  here 
Ite  was  prevented  from  doing  so  by  the  defendant's  saying,  "  Don't  shew 
yourself,  or  you'll  get  down  the  price  of  my  cargo;"  and  the  defendant 
never  informed  him  when  the  price  rose.  There  can  be  no  doubt  the 
vessel  was  made  a  warehouse  for  the  purposes  of  the  defendant. 

Park  J.  I  am  of  the  same  opinion.  It  is  urged  that  a  mere  conver- 
sation cannot  exonerate  tlie  plaintiff  from  the  rule  of  law:  but  this  was  a 
conversation  followed  by  an  act,  namely,  the  defendant's  keeping  pos- 
session of  the  shijj;  and  he  does  not  appear  ever  to  have  applied  to  the 
plaintiff  to  procure  the  necessary  documents. 

The  rest  of  the  Court  concurred,  and  the  rule  was 

Refused." 


ROOKE  V.  WASP.— p.  190. 

Where  defciulant,  after  an  application  by  plaintiff's  attorney,  paid  plaintiff  the 
clel)t  demanded,  witliout  notice  that  a  writ  had  been  sued  out,  ;iI)C)iit  vvliicli  the 
plaintiff  said  nothin;^,  and  tlie  attorney  afterwards  arrested  defondant  for  the 
costs  on  a  writ  which  had  been  sued  out  before  the  payment  of  the  debt,  the 
Court  stayed  the  proceedings  without  costs. 

On  the  7th  October  last,  the  plaintifTs  attorney  wrote  to  the  defen- 
dant, requesting  payment  of  a  debt  of  23/.  due  from  the  defendant  to 
the  plaintiff. 

On  the  11  Ih,  the  defendant  not  knowing  that  any  writ  had  been  sued 
out  against  him,  paid  the  plaintiff  hii^nself  the  23/,,  and  upon  that  occa- 
sion received  no  notice  of  any  such  writ.  On  the  Kith,  the  plaintiff's 
attorney  demanded  the  s.;m  of  3/.  lO.y.,  for  costs,  and  not  obtaining  it, 
arrested  and  held  the  defendant  to  bail  on  the  3d  of  November,  by  virtue 
of  a  capias  which  had  been  issued  on  the  Sth  of  October  preceding. 


5  Bingham,  190.  413 

Upon  an  affidavit  of  these  facts, 

Jo7ies   Serjt.   obtained  a  rule  nisi  to  deliver  up   the   bail-bond  to  be 
cancelled,  and  to  stay  proceedings. 

Taddy  Serjt.  who  shewed  cause,  urged  that  there  was  no  other  way 
by  which  the  plaintiff  could  obtain  the  costs  of  his  writ. 

But  the  Court,  under  all  the  circumstances,  ordered  the  proceedings 
to  be  staid  without  costs,  {a) 

Rule  absolute  to  stay  proceedings. 

(c)  See  Toms  v.  Poivell,  7  East,  530,    Page  v.  TViple,  3  East,  314. 


TURNER  and  Another  V.  PRINCE.— p.  191. 

Arrest  for  100/.  Verdict  for  plaintiflF,  subject  to  an  award;  costs  to  abide-  the 
event;  39/.  IHs.  found  to  be  due,  and  the  transactions  between  the  parties,  com- 
plicated.    The  Court  refused  to  allow  the  defendant  his  costs  under  43  G,-3. 


SHARPE,  Assignee  of  the  Sheriff  of  MIDDLESEX,  v.  ABBEY  and 

Others. — p.  193. 

In  a  declaration  on  a  bail-bond,  it  is  not  necessary  to  aver  that  the  writ  on  which 
defendant  was  arrested  was  issued  on  an  affidavit  of  debt,  and  indorsed  with 
the  sum  sworn  to. 

Df.bt  on  bail-bond  by  the  assignee  of  the  sheriff. 

The  plaintiff  declared  that  by  virtue  of  a  writ  ca.  ad.  resp.  directed 
to  the  sheriff  of  the  county  of  Middlesex,  out  of  the  Court  of  our  Lord 
the  King  of  the  Bench  at  Westminster  in  due  manner  issued,  and  return- 
able therein  in  fifteen  days  of  Easter  182S,  Robert  Abbey  was  taken 
and  arrested  by  tlie  sheriff  at  the  suit  of  the  plaintiff,  by  which  writ  the 
sheriff  was  commanded  to  take  Abbey  if  he  should  be  found  in  his 
bailiwick,  and  safely  to  keep  him  so  as  to  have  his  body  before  our 
Lord  the  King's  Justices  at  Westminster,  in  fifteen  days  of  Easter  1828, 
to  answer  the  jilaintifl'  in  a  plea  of  trespass,  and  also,  according  to  the 
custom  of  his  Majesty's  Court  of  Common  Bench,  in  a  plea  of  trespass 
on  the  case  on  promises  to  the  damage  of  the  plaintiff  of  300/. 

The  declaration  then  stated  in  the  usual  way,  that  the  sheriff  took  bail 
for  the  appearance  of  Abbey,  who,  before  the  return  of  the  writ,  exe- 
cuted ;f  ijond  conditioned  for  Abbey's  ajijiearancc;  that  Al)bcy  did  not 
appear,  and  that  the  sherifl' assigned  the  bond  to  the  jjlaintiff.  Breach, 
nun-payment. 

Demurrer,  on  the  ground  that  the  declaration  contained  no  allegation 
that  any  affidavit  was  made  and  filed  of  any  cause  of  action  of  the  said 
plaintiff  against  the  said  Robert  Abbey,  amounting  to  the  sum  of  20/.  or 
upwards;  nor  that  the  sum  or  sums  specified  in  any  such  aflidavit  were 
endorsed  upon  the  back  of  the  writ  in  the  declaration  mentioned  ; 
nor  that  the  writ  was  marked  or  endorsed  for  bail  fcjrany  sum  of  money 
f(jr  which  the  defendant  might  be  lawfully  held  to  bail,  or  for  any  sum 
whatever;  nor  that  the  bail  taken  by  trie  shcrilf  in  the  declaration  men- 
tioned, was  taken  for  the  .sum  or  sums  endorsed  upon  the  writ. 

fVildc  Seijt.  in  support  of  the  demurrer,  adniiltcd  that  the  case  of 


414  Christie  v.  Hamlet.  M.  T.  1828. 

JVhiskard  v,  Jlllder,  1  Burr.  330,  was  in  point  against  him;  but  relied 
on  the  disapprobation  of  that  decision  expressed  by  Mansjield  C.  J.  in 
/£iii  V.  Ilcale,  2  N.  R.  202,  and  on  the  positive  requisition  of  the  statute 
12  G,  1.  c.  29.,  that  the  sum  for  which  the  defendant  is  arrested  shall 
be  indorsed  on  the  writ. 

Best  C.  J.  The  question  is,  not  whether  an  affidavit  of  debt,  or  an 
indorsement  on  the  writ  of  the  sum  sworn  to,  be  necessary  to  the  validity 
of  an  arrest,  but  whether  it  be  necessary  in  an  action  on  a  bail-bond  to 
encumber  the  record  with  statements  of  this  preliminary  matter.  The 
case  of  JVhiskard  v.  Wilder  has  recently  been  confirmed  in  this  Court 
by  the  case  of  lVilcoxo7i  v.  Nightitigaley  4  Bingh.  501. 

Park  J.  It  was  also  confirmed  in  ArundellY.  While,  14  East, 
224. 

Gaselee  J.  It  is  not  necessary  for  us  to  decide  whether  the  statute 
of  G.  1.  is  directory  or  imperative;  the  only  point  here  is,  Whether  what 
is  prescribed  by  that  statute  with  regard  to  arrests  should  appear  on  the 
declaration  in  an  action  on  a  bail-bond  ?  The  precedents  are  both  ways, 
but  the  form  pursued  in  the  present  case  is  the  more  usual. 

Judgment  for  the  plaintiff. 


CHRISTIE  V.  HAMLET— p.  195. 

In  moving  to  set  aside  an  award  made  under  a  rule  of  court,  the  nile  nisi  ought  to 
be  drawn  up  on  reading  the  inile  under  which  the  matter  was  referred,  and  the 
objections  to  the  award  ought  to  be  specified. 

This  cause  was  referred  to  arbitration  by  an  order  of  the  Chief 
Justice,  made  ''  upon  hearing  the  attornies  on  both  sides,  and  by  their 
consent." 

The  arbitrators  commenced  their  award  by  reciting,  that  the  cause 
came  on  to  be  tried  at  the  sittings  at  Guildhall,  in  June  1828,  before 
the  Lord  Chief  Justice;  and  that  then,  by  consent  of  plaintiff  and  defen- 
dant, their  counsel  and  attornies,  an  order  was  made  that  it  should  be 
referred  to  the  arbitrators  in  question. 

Wilde  Serjt.  upon  an  affidavit  that  no  such  order  of  Nisi  Prius  as  that 
set  out  in  the  award  had  ever  been  made,  obtained  a  rule  nisi  to  set  the 
award  aside:  but  the  rule  did  not  state  on  what  grounds,  nor  was  it  ex- 
pressed to  have  been  drawn  up  on  reading  the  rule  of  Court  on  which 
the  cause  had  been  referred;  that  rule,  however,  was  set  out  in  the 
affidavit  above  mentioned.  * 

Taddy  Serjt,  who  shewed  cause,  objected  that  the  rule  nisi  ought  to 
have  been  drawn  up  on  reading  the  rule  which  authorized  the  arbitration, 
and  that  the  objections  to  the  award  ought  to  have  been  specified  in  the 
rule  nisi,  as,  in  a  rule  for  setting  aside  an  annuity,  the  objections  to  the 
grant. 

Wilde  urged,  that  it  was  sufficient  that  the  original  rule  had  been  set 
out  in  the  aflidavit  to  which  the  rule  nisi  referred;  but 

The  Court  was  against  him  upon  both  grounds,  and  added,  that  they 
had  no  authority  to  interfere,  the  award  being  a  nullity  which  they  could 
not  enforce  by  attachment. 

Rule  discharged. 


5  Bingham, 196.  415 


VICKERS  V.  GALLIMORE.— p.  196. 

Trespass  qu.  cl.  fr. ;  pleas,  not  guilty,  and  justifications  under  a  right  of  Avay.  Issue 
joined  on  not  guilty:  right  of  way  traversed,  and  issue  joined  thereon.  New 
assignment  and  judgment  by  default  thereon.  Verdict  for  plaintiff  1«.  on  issue 
of  not  guilty;  40«.  damages  on  the  new  assignment;  verdict  for  defendant  on 
one  of  the  justifications:  Held,  that  the  plaintiff  was  entitled  to  the  general  costs 
in  the  cause. 

Trespass  for  breaking  and  entering  the  plaintiff's  close,  and  prostra- 
ting his  wall. 

The  defendant  pleaded,  first,  the  general  issue,  not  guilty,  and  then 
seven  special  pleas,  justifying  the  trespass  under  an  alleged  right  of 
way.  The  plaintiff,  in  reply,  joined  issue  on  the  first  plea,  traversed  the 
special  pleas,  and  nev^r-assigned.  The  defendant  joined  issue  on  the 
tiaverses,  and  suffered  judgment  to  go  by  default  on  the  new  assign- 
ment. 

At  the  trial,  last  Yorkshire  Assizes,  a  verdict  was  found  for  the  plain- 
tiff with  \s.  damages,  on  the  general  issue,  and  on  all  the  other  pleas  ex- 
cept the  third,  on  which  a  verdict  was  found  for  the  defendant.  The 
damages  on  the  judgment  by  default  on  the  new  assignment,  were  by 
consent,  assessed  at  40^,,  on  the  understanding  that  the  finding  to  that 
amount  should  not  affect  the  question  of  costs. 

Cross  Serjt. ,  on  the  ground  that  a  record  in  this  state  shewed  the  sub- 
stantial merits  of  the  cause  to  be  with  the  defendant,  obtained  a  rule 
calling  pn  the  plaintiff  to  shew  cause  why  the  postea  should  not  be  de- 
livered to  the  defendant. 

Wilde  Serjt.  shewed  cause,  and  relied  on  House  v.  The  Commission- 
ers of  I  he  Thames  Navigation,  3  B.  &  B.  117;  Longden  v.  Bourn,  1 
B.  &  C.  278. 

Cross  cited  Thornton  v.  Williamson,  1 3  East,  191;  Othir  v.  Calvert 
1  Bingh.  275;  Benclt  v.  Coster,  1  B.  &  B.  465;  Vivian  v.  Blake,  H 
East,  2G3;  Harber  v.  Rand,  9  Price,  336. 

Best  C.  J,  The  question  has  been  decided  by  the  cases  of  House  v. 
The  Commissioners  of  the  Thames  Navigation  and  Longden  v. 
Bourn.  The  pleadings  in  those  cases  were  precisely  the  same  as  in  the 
present — Not  guilty,  on  which  issue  was  joined;  justifications  of  the 
trespass,  under  rights  of  way  and  a  licence,  which  were  traversed;  and  a 
new  assignment,  on  which  judgment  was  suffered  to  go  by  default.  Ver- 
dict for  the  defendant  on  some  of  the  justifications,  and  for  tlie  jjlaintiff 
on  the  other  issues.  The  Court  held,  that  as  the  plaiiitilV  had  i)ecn  driven 
to  trial  by  the  plea  of  not  guilt}',  be  was  entitled  to  the  general  costs  in 
the  cause. 

In  Harhcrv.  Jiand,  the  general  issue  was  not  pleaded.  The  cosfa 
must  he  determined  by  the  stale  of  the  record  at  the  end  of  the  cause:  to 
enter  on  the  merits  for  that  purpose  would  lead  to  new  and  intricate 
enquiry:  and  if  the  defendant  pleads  an  unnecessary  plea,  he  must  pay 
for  the  expense  occasioned  by  it.  The  plea  of  not  guilty  rendered  it 
necessary  for  the  plaintiff  to  go  to  the  fx|)cr.se  of  proving  the  trespass, 
and  the  defendant  ought  to  bear  that  expense,  or  to  have  withdrawn  the 
general  issue,  as  is  suggosted  in  the  nolo  in  Wms.  Saunders,  300  a- 
Pa  UK  J.   concurred. 


416  RiDDELi,  V.  Sutton.  M.  T.  1828. 

BnnnouGH  J.  Tlic  substnnlial  merits  of  the  cause  cannot  be  entered 
into  upon  a  motion  like  this.  We  must  look  at  the  record.  The  de- 
tondant  compelled  the  plaintiff  to  go  down  to  trial  on  the  general  issue, 
and  the  verdict  having  been  for  him  on  that  issue,  he  is  entitled  to  his 
costs. 

Gaselee  J.  House  v.  The  Co?nmissionc7's  of  Ihc  Thaines  Naviga- 
tion, and  Longdeii  v.  Bourn,  arc  in  point.  In  Harber  v.  Rand,  there- 
was  no  general  issue.     The  rule  must  be 

Discharged. 


RIDDELL  V.  SUTTON,  Executrix  ofSUTTON.— p.  200. 

1.  Debt  lies  against  an  executrix  upon  a  cause  of  action  accruing  after  the  death  of 
the  testator. 

2.  Where  an  executrix  referred  to  arbitration  to  be  finally  determined  on,  cer- 
tain disputes  and  difTcrenccs  rcs])ecting  certain  unsettled  accounts,  and  the  ar- 
bitrators, without  finding  assets,  awarded  her  to  pay  a  certain  sum:  Held,  that 
plene  administravit  was  no  bar  to  an  action  on  the  award. 

Debt,  on  an  award.  The  declaration  stated,  that  by  an  agreement 
made  31st  December  1822,  between  the  plaintiff,  on  the  one  part,  and 
the  defendant,  as  executrix  of  Sutton,  of  the  other  part,  after  reciting 
therein  that  disputes  and  differences  had  arisen,  and  were  depending  be- 
tween the  plaintiff  and  the  defendant  as  executrix  as  aforesaid,  respecting 
certain  unsettled  accounts  between  them,  which  they  had  mutually 
agreed  to  refer  to  the  award  and  determination  of  the  persons  therein- 
after named;  therefore,  for  the  finally  settling  such  disputes  and  differ- 
ences, it  was,  amongst  other  things,  agreed  by  and  between  the  parties 
thereto,  mutually  and  reciprocally,  that  the  said  matters  in  dispute  be- 
tween them  should  be,  and  were  thereby  referred  to  the  final  award  and 
determination  of  Thomas  Rushton  and  Thomas  Birch,  so  as  they  should 
make  their  award  before  the  20th  of  January  then  next;  and  if  they 
siiould  not  do  so,  the  matters  in  difference  were  referred  to  the  award 
and  determination  of  such  person  as  umpire  as  should  be  named  in  man- 
ner thereinafter  mentioned:  costs  to  be  in  the  discretion  of  the  arbitra- 
tors or  umpire  :  that  the  said  Thomas  Rushton  and  Thomas  Birch, 
having  taken  upon  themselves  the  said  arbitration,  and  having  heard  and 
duly  weiglied  the  allegations  and  proofs  of  both  of  the  said  parties  con- 
cerning the  matters  so  in  difference  as  aforesaid,  and  having  examined 
the  various  books,  accounts,  papers,  and  writings  relating  to  the  said 
matters  in  dispute,  and  also  the  said  parties  themselves,  did,  in  due  man- 
ner and  within  the  time  limited  for  making  the  said  award,  to  wit,  on 
the  18th  of  January,  in  the  year  of  our  Lord  1S23,  at,  &c.  make  their 
award  and  determination  of  and  concerning  the  said  matters  in  dispute, 
so  referred  to  them  as  aforesaid,  in  writing  under  their  hands  ready  to 
be  delivered  to  the  said  parties,  or  such  of  them  as  should  require  the 
same,  bearing  date  on  a  certain  day  and  year,  to  wit,  the  same  day  and 
year  in  that  behalf  aforesaid.  And  Jjy  the  said  award,  they  the  said 
Thomas  Rushton  and  Thomas  Birch  did  find  that  there  remained  a 
balance  due  from  the  said  defendant  to  the  said  plaintiff  of  54/.  Qs.  \O-4d.s 
and  they  did,  therefore,  thereby  award,  order,  and  direct  the  payment 
of  such  balance  to  be  made  by  the  said  defendant  to  the  said  plaintiff,  on 
or  before  the  31st  day  of  ^lorch  then  next.  And  they  did  thereby 
further  award,  order,  and  direct,  that  each  of  the  said  parties  in  differ- 


5  BlNLIHAM,  200,  417 

enre  should  pay  liis  ami  her  own  costs  and  charges  attending  the  sane 
reference.  That  the  said  defendant,  executrix  as  aforesaid,  did  not,  nor 
would,  on  the  said  Slst  day  of  March,  in  the  year  lS-23  aforesaid,  make 
payment  to  the  said  plaint'ifl"  of  the  said  balance  or  sum  of  54/.  0^.  lOid. 
in  the  said  award  mentioned,  or  any  part  thereof,  nor  has  she  since  paid 
the  same,  or  any  part  thereof. 

The  defendant  pleaded,  first,  nondclinet,  on  which  issue  was  joined. 
Secondly,  plene  administravit;  and,  thirdly,  tliat  no  evidence  wus  given 
or  offered  before  the  said  Thomas  Rushton  and  Thomas  Birch,  on  occa- 
sion of  the  said  arbitration,  nor  did  they  the  said  Thomas  Rushton  and 
Thomas  Birch  receive  any  proof,  nor  was  it  admitted  by  or  on  behalf 
of  the  said  defendant,  that  she,  the  said  defendant,  as  executrix  as  afore- 
said, had,  at  any  time,  before  the  making  of  the  said  supposed  award  ia 
that  Court  mentioned,  in  her  hands  any  goods,  chattels,  monies,  or  ef- 
fects, which  were  of  the  said  William  James  Sutton,  deceased,  at  the 
time  of  his  death  to  be  administered. 

Demurrer  inde,  and  joinder. 

Russell  Serjt.  in  support  of  the  demurrer. 

The  pleas  are  ill.  First,  the  plea  of  plene  administravit;  because  the 
mere  general  submission  to  arbitration  was  an  admission  of  assets;  Har- 
ry V,  Rush,  1  T.  R.  G91.  Pearson  and  olhers,  Jlssignees  of  Scott,  a 
Bankrupt,  v.  Henri/,  5T.  R.  G.   Robson  andanotlier,  Assignees,  <S'C. 

V. ,  2  Rose,  50.      IVanshorough  v.  Dyer^  2  Chit.   Rep.   40. 

Worthington  v.  Barlow,  7  T.  R.  453. 

The  last  plea, — that  no  evidence  was  offered  of  assets,  nor  were  they 
admitted, — is  clearly  bad. 

If  the  defendant  docs  not  choose  to  bring  forward  that  ground  of  de- 
fence, it  must  be  taken  as  admitted.  She  ought  at  least  to  have  offered 
evidence,  and  is,  in  fact,  pleading  her  own  default.      If,  as  the  Lord 

Chancellor   said  in  Robson  aiid  another,  Assig-nees,    v. •,   the 

submission  without  protesting,  &ic.  is  an  admission  of  assets,  t!ic  attend- 
ing the  arbitrator  and  going  through  a  case  without  bringing  forward 
that  point,  must  I)e  an  a<lmission.  Even  the  misconduct  of  an  arl)ilra- 
tor  in  not  having  heard  evidence  cannot  be  pleaded  in  bar  to  an  action 
on  bond,  conditioned  for  the  performance  of  the  award;  but  it  is  only 
matter  for  application  to  the  e(|uilablc  jurisdiction  of  the  Court  to  set 
aside  the  award:  Braddick  v.  Thom])S<ni^  8  Kast,  344,  and  the  notes 
to  Vcale  V.   IVarner,  I  Wms.  Saund.  3'J7  a. 

Storks  ^erjL  contra.  Taking  the  wluiif,-  of  tiic  submission  together, 
this  was  not  a  submission  of  all  mafttMs  in  dillcronce,  but  merely  a  refer- 
ence of  accounts,  so  that  the  arijitralors  have  exceeded  their  authority  in 
ordering  payment  by  the  defendant;  at  all  events,  in  ordering  payment 
without  fauling  or  recpiiring  evidence  of  assets.  The  pleas,  therelore, 
are  not  affected  by  the  cases  relied  on  for  the  plaintill,  for  in  all  those 
cases  the  submission  was  substantiallv  "f  all  matters  in  difference,  and 
Pearson  v.  Henry  is  in  point  for  the  d(;lun(laiit.  He  also  cited  Love 
v.   Ilnneyhourne,  A  Dowl.  &  Kyi.  vS14. 

But  the  declaration  is  ill;  for  the  action  being  against  an  executrix  is 
improperly  conceived  in  debt.  1  Wms.  Saund.  GS.  note  'J.  Pinchon'^s 
case,  \)  Rep.  87  I). 

Russell  in  reply,  cited  King  v.  IJ'illiams,  4  Dowl.  &:  Hyl.  3. 

Bkst  C.  J.  This  is  an  action  of  debt  against  the  defendant  as  execu- 
trix of  Sutton,  on  an  award  which  has  proceeded  on  her  submission. 

VOL.  XV.  .'>3 


418  RfDDELL  V.  Sutton.  M.  T.  1828. 

It  has  been  objected  on  her  part,  first,  that  the  action  of  debt  does  not 
lie  against  an  executor:  but  the  principle  on  which  that  has  been  decided 
is,  that  an  executor  cannot  wage  his  law  of  a  debt  contracted  by  his  tes- 
tator; it  does  not  apply,  therefore,  to  a  case  like  the  present,  where  the 
undertaking  to  pay  has  originated  with  the  representative,  who  is  there- 
fore better  acquainted  with  the  transaction  than  the  testator  could  have 
been. 

It  has  been  contended,  secondly,  that  a  plea  of  plene  administravit  is 
a  good  answer  to  the  plaintifl's  demand;  I  think  it  is  not.      The  case  of 

Robson  V. ,  contains  all  the  good  sense  that  bears  on  the  subject: 

if  a  reference  be  submitted  to  by  an  executor,  and  he  does  not  protest 
in  the  first  instance  that  he  has  no  assets,  he  should  not  be  afterwards 
allowed  to  say  so,  because  in  that  case  the  opposite  party  will  have  been 
put  to  the  expense  of  an  arbitration  to  no  purpose.  The  arbitration  should 
be  placed  on  the  same  footing  as  an  action,  in  which,  if  an  executor 
omit  to  plead  that  he  is  without  assets,  he  cannot  afterwards  set  up  that 
ground  of  defence. 

There  is  no  ground  for  asserting  that  the  arbitrator's  authority  was  in 
this  case  limited  to  the  investigation  of  accounts  and  finding  a  balance. 
The  agreement  set  out  in  the  declaration  recites,  that  disputes  and  dif- 
ferences were  depending  between  the  plainlifi"  and  defendant  respecting 
certain  unsettled  accounts,  and  that  iox  finally  settling  such  disputes 
and  differences,  it  was  agreed  that  the  said  matters  in  dispute  between 
the  parties  should  be  referred  to  the  final  award  and  determination  of 
the  arbitrators.  But  the  arbitrators  could  not  finally  settle  the  disputes 
between  the  parties  by  merely  finding  a  balance. 

The  allegation  that  no  evidence  of  any  assets  was  tendered  to  the  ar- 
bitrators, cannot  be  the  subject  of  a  plea.  For  aught  that  appears  on 
the  plea  in  which  this  is  alleged,  the  possession  of  assets  might  not  have 
been  disputed;  and  if  the  arbitrators  have  misconducted  themselves,  that 
is  ground  for  another  mode  of  proceeding.  Our  judgment  must  be  for 
the  plaintif}'. 

Park  J.  1  have  no  doubt  in  this  case.  The  third  plea  goes  chiefly 
to  shew  misconduct  in  the  arbitrators,  which  ought,  if  it  existed,  to  be 
the  subject  of  an  application  to  the  Court,  and  not  of  a  plea.  But  look- 
ing at  the  recital  in  the  submission,  and  at  the  whole  of  the  case,  I  think 
it  clear  that  the  defendant  admitted  assets,  and  submitted  to  a  final  set- 
tlement of  all  disputes:  that  coUld  not  be  but  by  paying  what  should  be 
found  due. 

BuRROuGH  J.  There  could  be  no  wager  of  law  in  this  case,  the  cause 
of  action  being  a  written  agreement,  which  is  set  out  in  the  first  count. 
The  arbitrators  had  authority  to  decide  in  the  manner  they  have  done, 
and  to  award  payment.     The  pleas  are  a  mere  experiment. 

Gaselee  J.  I  thought  the  point  too  clear  to  be  argued,  and  am  still 
of  opinion  that  the  plaintiff  is  entitled  to  judgment.  The  objection  on 
the  ground  of  wager  of  law  does  not  apply,  because  this  action  is  not 
brought  on  a  contract  of  the  testator's.  With  regard  to  the  question  of 
assets,  the  defendant,  by  submitting  to  a  reference,  without  protesting 
that  she  was  not  furnished  with  assets,  must  be  taken  to  have  left  the 
mode  of  payment  to  the  consideration  of  the  arbitrator. 

Judgment  for  the  plaintiff. 


5  Bingham,  208.  419 


AMNER  and  Another  v.  CATTELL.— p.  208. 

The  Court  discharged  a  rule  for  changing  the  venue,  on  an  affidavit  that  the  de- 
fendant's attorney  had  said  he  should  change  the  venue  to  postpone  the  trial, 
and  (which  was  the  fact),  that  in  the  interim,  an  act  would  come  into  opera- 
tion which  would  defeat  the  plaintiff's  claim.     Gaselee  J.  dissentiente.  .\ 

Indebitatus  assumpsit,  to  which  the  defendant  pleaded  the  statute 
of  limitations,  and  the  plaintiff  replied  that  the  cause  of  action  accrued 
within  six  years. 

Adams  Serjt.  having  obtained  a  rule  nisi,  on  the  part  of  the  defen- 
dant, to  change  the  venue  from  London  to  Warwick,  on  the  usual  aflBi- 
davit, 

Meretrether  Serjt.  shewed  cause  upon  an  affidavit  of  the  plaintiff's  at- 
torney, which  stated  that  he  had,  upon  commencing  the  action,  written 
to  the  defendant's  attorney,  informing  him  of  the  defendant's  admissions 
and  promises  of  payment  of  the  debts  sought  to  be  recovered;  that  he 
afterwards  called  on  the  defendant's  attorney  for  his  undertaking  for  the 
appearance  of  the  defendant,  when  the  attorney  informed  him  that  Lord 
Tenterden's  act  came  into  operation  on  the  1st  of  January,  and  that  he 
should  change  the  venue,  and  beat  the  plaintiff,  as  he  had  no  promise  in 
writing. 

The  learned  Serjeant  contended  that  it  was  evident  the  defendant 
did  not  seek  to  change  the  venue,  because  the  cause  of  action  arose  in 
Warwickshire,  or  to  further  the  purposes  of  justice,  but  because  the 
trial  would  by  such  change  of  venue  be  postponed  to  a  period  at  which 
the  plaintiff's  claim  might  be  defeated  by  a  law  coming  into  operation 
after  the  commencement  of  his  action.  The  object  of  permitting  a 
change  of  venue  was  to  advance  the  ends  of  justice;  and  where  such  a 
design  as  the  present  was  made  manifest,  the  Court  would  best  consult 
the  ends  of  justice  by  discharging  the  rule. 

Adams.  The  rule  for  changing  the  venue  has,  hitherto,  been  always 
granted  as  a  matter  of  right,  unless  the  opposite  party  will  undertake 
to  give  material  evidence  in  the  county  from  which  it  is  proposed  to 
remove  the  cause.  It  is,  therefore,  unnecessary  to  enter  into  the  alleged 
conversation  on  the  subject  of  the  new  statute;  but  if  that  statute  were 
passed  for  the  furtherance  of  the  ends  of  justice,  by  setting  disputes  at 
rest  after  a  certain  lapse  of  time,  the  defendant's  intention,  as  alleged, 
is  in  furtherance  of  tlie  statute,  and  has  nothing  in  it  opposed  to  tlieends 
of  justice.  At  all  events,  he  should  be  allowed  to  answer  an  affidavit 
so  out  of  the  usual  course  on  such  a  rule. 

Best  C.  .1.  I  think  the  venue  ought  not  to  be  changed  in  this  case; 
but,  in  discharging  the  application,  the  Court  does  nothing  inconsistent 
with  the  provisions  of  the  new  art;  on  the  contrary,  it  falls  in  with  the  in- 
tentions of  the  legislature,  because  it  was  with  a  view  to  prevent  an  ex 
post  facto  operation  with  respect  to  suits  alrcadv  commenc(Ml,  that  the 
period  of  the  art's  coming  into  force,  was  postponod  till  six  months  af- 
ter it  passed.  To  make  this  rule  absolute  would  hi-,  in  effect,  to  put  off 
the  trial  till  after  the  next  term,  while,  if  it  were  tried  after  the  pre- 
sent term,  the  plaintiff  might  succeed  on  a  parol  promise,  which  when 
the  act  camc!  into  operation  might  prove  insufficient;  though  upon  th.»t 
point  I  abstain  from  pronounriug  any  opinion:  hut  acting  on  the  spirit 
of  the  posijjoiiing   clause,  wc   ought   not   to  prevent  the  plaintiff  fiom 


420  Amnkh  r.  Cattei.i,.  M.  T.  1828. 

trying  liis  c.uinc,  il   lio  be  enabled  \o  do  so,  within  the  time  limited  by 
the  act  for  the  continuance  oi'  the  oUI  law. 

I  do  not  agree  that  no  cause  can  be  shewn  against  a  rule  of  tliis  sort, 
l)ut  undertaking  to  give  material  evidence  in  the  county  from  which  it 
is  sought  to  remove  the  venue.  I  have  often  heard  other  causes  shewn; 
and  wheie  it  appears  tliat  justice  cannot  be  had  if  the  venue  is  changed, 
it  ouglit  not  to  be  changed. 

Supposing  a  plaintiQ'to  rely  on  a  promise,  which  would  be  available 
but  for  the  postponement  of  a  trial,  it  would  be  doing  injustice  to  post- 
pone it.      I  think,  therefore,  this  rule  ought  to  be  discharged. 

Park  J.  I  am  of  the  same  opinion;  and  I  agree  that  upon  motions 
of  this  kind  other  causes  may  be  shewn  against  the  rule,  besides  under- 
taking to  give  material  evidence  in  the  county  from  which  it  is  sought 
to  remove  the  venue.  In  the  King's  Bench  they  are  made  the  subject 
of  a  separate  motion,  but  in  this  Court  they  may  be  brought  forward 
in  shewing  cause  against  the  original  rule.  With  respect  to  the  new 
statute  requiring  a  written  promise  to  render  a  party  liable  in  respect  of 
a  debt  extinguished  by  the  statute  of  frauds,  no  one  approves  of  it  more 
than  I  do.  But,  in  seeking  to  further  the  object  of  that  statute,  we 
must  be  careful  not  to  do  injustice.  When  the  legislature  gives  six 
months  before  allowing  the  act  to  come  into  operation,  it  indicates  an 
intention  to  enable  parties,  now  relying  on  parol  promises,  to  sue  on 
them  effectually.  The  plaintiff,  for  that  purpose,  lays  his  venue  in 
London,  where  his  cause  will  come  to  trial  before  the  six  months  have 
elapsed;  the  defendant  seeks  to  defeat  the  claim  by  removing  the  cause 
to  Warwick,  and  we  should  be  lending  ourselves  to  injustice  if  we  were 
to  assist  him  in  his  attempt. 

BuRRouGH  J.  thought  the  defendant  had  a  right  to  change  the  venue 
as  a  matter  of  course,  unless  the  plaintiff  undertook  to  give  material 
evidence  in  the  county  in  which  it  was  first  laid;  and  that  if  the  plain- 
tiff had  any  malpractice  to  complain  of,  he  should  make  it  the  subject 
of  a  separate  motion,  in  which  the  defendant  might  answer  his  affida- 
vits. It  would  lead  to  great  inconvenience  if  he  could,  on  the  defend- 
ant's motion,  prevent  the  change  of  the  venue  by  an  affidavit  which  the 
defendant  had  no  opportunity  of  answering,  and  which  might  be  all  false. 
Upon  the  present  occasion  he  proposed  that  the  defendant's  attorney 
should  be  allowed  to  answer  the  affidavit  of  the  plaintiff's  attorney,  but 
was  willing  to  concur  in  discharging  the  rule,  if  such  affidavit  should 
not  prove  to  be  an  answer  to  the  former. 

Gaselee  J.  I  think  this  lule  ought  to  be  made  absolute,  although  I 
agree  that  the  plaintiff  on  shewing  cause  may  allege  other  matters,  be- 
sides an  undertaking  to  give  material  evidence  in  the  county  where  he 
has  laid  the  venue,  and  liiat  we  may,  where  it  is  requisite,  permit  the 
defendant  to  answer  the  matters  in  the  plaintiff's  affidavit.  But  we  are 
to  consider  the  law  as  it  now  stands,  and  not  to  look  at  an  act  which  is 
not  yet  come  into  operation;  and  under  the  law  as  it  now  stands  the 
phiinliff  has  shewn  no  cause  why  the  venue  should  not  be  changed. 
But,  even  with  respect  to  the  new  law,  if  we  were  to  discharge  the  de- 
fe.ndant's  rule,  we  should,  contrary  to  the  spirit  of  the  act,  encourage 
suits  upon  every  parol  promise  made  since  last  May. 

The  Court  then  pcrmiltcd  the  defendant's  attorney  to  answer  the 
affidavit  of  the  plaintiff's  attorney;  but   the  answer   not   containing,  in 


5  Bingham,  212.  421 

the  opinion  of  the  Court,  an  explicit  denial  of  the  language  ascribed  to 
him  in  the  affidavit  of  the  plainlifPs  attorney,  the  rule  was 

Discharged. 


MACKLIN  V.  WATERHOUSE,  CLENCH,  and  L.  0.  WEEKS.— 

p.  212. 

A  notice  that  the  proprietor  of  a  general  coach-office  will  not  be  responsible  for 
the  carriage  of  parcels  of  more  than  5/.  value,  unless  entered  as  such,  will  not 
avail  the  proprietor  of  a  coach  who  takes  a  parcel  from  the  office,  unless  it  be 
otherwise  shewn  that  he  is  connected  with  the  office. 

2.  The  carrier's  agent  telling  the  female  servant  of  the  owner  of  a  parcel  above 
that  value,  that  it  ought  to  be  insured.  Held,  not  a  sufficient  notice  of  the  lim- 
itation of  the  carrier'b  responsibility. 

The  plaintiff  declared,  that  whereas  he,  at  the  special  instance  and 
request  of  the  defendants,  had  caused  to  be  delivered  to  them,  on,  &c. 
at,  &c.,  and  the  defendants  had  then  and  there  received  into  their  care 
and  custody  a  certain  package  or  parcel  containing  divers  promissory 
notes,  for  the  payment  of  divers  sums  of  money  to  bearer  on  demand, 
and  divers  pieces  of  current  coin  of  the  realm,  of  great  value  (sc.  49/.), 
to  be  safely  and  securely  carried  and  conveyed  by  the  defendants,  by  a 
certain  conveyance  called  the  Exeter  mail,  from  Salisbury  to  London, 
and  at  London  to  be  safely  and  securely  delivered  for  the  plaintiff,  for 
certain  reasonable  hire  and  reward  to  the  defendants  in  that  behalf,  yet 
the  defendants,  not  regarding  their  duty  in  that  behalf,  did  not  safely  or 
securely  carry  or  convey,  or  cause  to  be  carried  or  conveyed,  by  the  said 
conveyance  called  the  Exeter  mall,  or  in  any  other  manner,  the  said 
package  or  parcel  and  its  contents,  from  Salisbury  to  London,  nor  at 
London  safely  or  securely  deliver  the  same  for  the  plaintiff;  but  so  neg- 
ligently and  improperly  behaved  and  conducted  themselves  in  the  pre- 
mises, that  by  and  through  the  negligence,  carelessness,  and  default  of 
the  defendants  in  the  premises,  the  package  or  parcel  aforesaid,  and  lis 
contents  of  the  value  aforesaid,  became  and  were  wholly  lost  to  the 
plaintiff,  to  wit,  at,  &.c. 

There  was  a  second  count  in  trover.      Plen,  not  guilty. 
At  the  trial   before  licst  C.  J.,  London  sittings  after  Easter  term,  it 
appeared  that  the  defendants  were  proprietors  of  the  mail-coach  running 
from  Exeter  through  Salisbury  to  London: 

That  the  plaintiff's  agent  sent  his  female  servant  with  a  parcel  con- 
taining country  bank-notes  and  sovereigns,  amounting  in  value  to  •^*^lj 
to  a  co.icb  office  in  Salisijury,  kept  by  one  Weeks;  on  the  outside  oT 
which  was  painted  <'  VVccks's  mail  and  g(;ner;d  coacli-nfficc:"  but 
whether  he  was  Weeks,  one  of  the  defendants,  did  not  appear:  The 
Bcrvant  stated,  tha^she  told  the  office-keeper  it  was  a  j)arcel  of  conse- 
quence; a  parcel  of  value,  though  she  did  not  know  of  what  value;  and 
the  office-keeper  said,  he  thereupon  told  her  it  must  be  insured.  It  was 
booked  for  London,  however,  and  not  insured. 

The  following  notice  was  suspended  in  the  office: — "Take  notice: 
the  proprietor  of  this  office  will  not  be  arcoiiiitablc  for  any  parcel  or 
paok-igc  exceeding  the  value  of  live  pounds,  unlos  entered  n.s  ?nch,  and 
paid  for  aceoi'liiigly. " 


422  RiLET  V.  HoRNE.  M.  T.  1828. 

The  plaintiff  and  his  agent  were  aware  of  this  notice  in  Weeks'* 
office. 

The  parcel  was  forwarded  to  London  by  the  defendants'  coach;  and 
in  London  it  was,  according  to  an  admission  of  one  of  the  defendants, 
stolen  by  a  boy  appointed  by  them  to  watch  that  and  other  parcels.  No 
account  was  given  by  the  defendants  of  the  boy's  character  when  they 
took  him  into  their  service. 

On  the  part  of  the  defendants,  it  was  objected  by  Wilde  Serjt.  that 
evidence  of  a  loss  by  felony  did  not  sustain  the  allegation  in  the  decla- 
ration, that  the  parcel  was  lost  by  negligence;  especially  as  the  defend- 
ants were  not  charged  as  common  carriers:  that  the  statement  of  their 
contract  ought  to  have  been  accompanied  with  a  statement  of  the  notice 
by  which  they  had  limited  their  responsibility;  Latham  v.  Rutley,  2 
B.  &  C.  20:  and  that,  at  all  events,  the  notice  was  sufficient  to  exonerate 
them  from  liability  for  any  loss,  that  did  not  occur  through  gross  negli- 
gence. The  question  on  this  point  was  reserved ;  and  the  jury,  under  the 
direction  of  his  Lordship,  found  for  the  plaintiff. 

They  found  also,  that  there  had  been  no  negligence  or  concealment 
on  his  part,  and  that  there  had  been  negligence  on  the  part  of  the  de- 
fendants. 

Wilde  Serjt.  having,  upon  the  foregoing  objections,  obtained,  in  Trinity 
term,  a  rule  nisi  to  set  aside  this  verdict,  and  enter  a  nonsuit,  or  have 
a  new  trial  instead, 

Taddy  Serjt.  shewed  cause,  and  cited  Clarke  v.  Gray,  6  East,  564; 
Smith  V.  Home,  8  Taunt.  146;  Beck  \.  Evans,  16  East,  247;  Brooke 
V.  Pickwick,  4  Bingh.  218. 

Wilde  {Spa72kie  Serjt.  was  with  him)  referred  to  Newbond  v.  Just, 

2  Carr.  &P.  76;  Harris  v.  Packwood,  3  Taunt.  264;  Marsh  v.  Home, 

5  B.  &  C.  322;  Nicholson  v.  Willan,  5  East,  507;  Lowe  v.  Booth,  13 

Price,  329;  Bodenham  v.  Bennett,  4  Price,  31;  M^Manus\.  Crickett, 

1  East,  106;   Croft  wjiUson,  4  B.  &  A.  590;  Finucane  v.  Small,  1 

Esp.  315.  /^  /         7/ 

'  Cur.  adv.  vult. 

For  the  judgment,  sec  the  end  of  the  next  case. 


RILEY  and  Others  v.  HORNE  and  Others.— p.  217. 

Semble,  that  where  carriers  run  a  coach  from  A.  to  B.  and  back, notice  that  ihey 
limit  their  responsibility  on  the  carriage  of  parcels  from  A.  to  B.,  is  notice  that 
they  limit  it  likewise  from  B.  to  A. 

Case  against  the  defendants  as  common  carriers,  for  negligence  in  losing 
goods  entrusted  to  them  to  be  safely  conveyed  by  them  from  Kettering 
to  London,  and  there  to  be  delivered  to  the  plaintif^j  for  reward  to  the 
defendants  in  that  behalf.      Plea,  not  guilty. 

At  the  trial  before  Best  C.  J.,  London  sittings  after  Hilary  term  1828, 
it  appeared  that  the  plaintiffs  were  silk-weavers  residing  in  London,  and 
carrying  on  business  there  and  at  Kettering:  that  the  defendants'  coach 
ran  from  the  George  and  Blue  Boar,  London,  to  Kettering  and  back: 
that  at  the  George  and  Blue  Boar  there  was  a  notice,  that  the  proprietors 
of  coaches  which  set  out  from  that  office  would  not  be  responsible  for 
goods  above  the  value  of  5/.,  unless  entered  as  such,  and  paid  for  accord- 


5  BiNGHAM;  217.  423 

ingly:  that  the  plaintiffs  were  aware  of  this  notice,  and  in  the  habit  of 
sending  goods  up  and  down  by  the  defendants'  coach:  that  the  goods  in 
question,  silks,  to  the  value  of  about  46/.,  were  delivered  to  the  defend- 
ants by  the  plaintiffs'  servant,  at  the  defendants'  office  at  Kettering,  to 
be  conveyed  to  London,  and  that  the  servant  saw  no  such  notice  in  the 
office  at  Kettering:  that  the  goods  were  never  delivered  to  the  plain- 
tiffs. 

The  learned  Chief  Justice,  thinking  the  notice  in  the  office  at  the 
George  and  Blue  Boar,  of  which  the  plaintiffs  were  cognizant,  applied 
only  to  the  journey  out  to  Kettering,  and  not  to  the  journey  back,  a  ver- 
dict was  found  for  the  plaintiffs,  with  leave  for  the  defendants  to  move 
to  set  it  aside. 

Andrews  Serjt.  obtained  a  rule  nisi  accordingly,  in  Easter  term,  on 
the  ground  that  the  plaintiffs,  having  an  establishment  at  Kettering  as 
well  as  in  London,  must  be  presumed  to  have  known  that  the  coach 
which  came  from  Kettering  was  that  which  set  out  from  the  George  and 
Blue  Boar;  if  so,  they  were  bound  by  the  contents  of  the  notice  at  that 
office.  In  May  hew  v.  Eames,  3  B.  &  C.  601,  an  agent  employed  by  a 
commercial  house  in  London  to  collect  debts  in  the  country,  delivered 
a  parcel  containing  bank-notes  to  a  common  carrier,  to  be  forwarded  to 
his  principals  in  London ;  which  parcel  was  lost.  The  carriers  had  given 
notice  that  they  would  not  be  accountable  for  parcels  containing  bank- 
notes. The  agent  had  no  knowledge  of  such  notice,  but  the  principal 
had.  It  was  holden,  that  it  was  their  duty  to  have  instructed  their  agent 
not  to  send  bank-notes  by  that  carrier,  and  that  the  latter  was  not  re- 
sponsible. 

Wilde  Serjt.  shewed  cause.  In  Mayhew  v.  Eames,  the  plaintiffs 
knew  that  the  coach  which  brought  their  parcel  from  the  country  was 
the  coach  which  started  from  an  office  in  London,  where  the  carrier's 
liability  was  limited  by  notice.  There  was  no  proof  here  that  the  plain- 
tiffs knew  that  the  coach  from  Ketteryig  was  the  coach  which  started  from 

the  Georce  and  Blue  Boar.  n  j         j. 

°  Ltir.  adv.  vult. 

Best  C.  J.  In  a  state  of  society  such  as  that  we  live  in, — in  which 
we  are  supplied  with  the  necessaries  and  conveniences  of  life  by  an  inter- 
change of  the  produce  of  the  soil  and  industry  of  every  part  of  the 
world, — so  much  property  must  be  entrusted  to  carriers,  that  it  is  of 
great  importance  that  the  laws  relating  to  the  carriage  of  goods  should 
be  rendered  simple  and  intelligible;  and  that  they  should  be  such  as  to 
provide  for  the  safe  conveyance  of  property,  and  at  the  same  time  protect 
the  carrier  against  risks,  the  extent  of  which  he  cannot  know,  and, 
therefore,  cannot  determine  what  precautions  arc  proper  for  his  security. 

Fearful  of  laying  down  any  rule  which  might  be  injurious  cither  to 
the  public  or  to  those  most  useful  servants  of  the  public,  common  carri- 
ers, we  thought  it  right  to  avail  ourselves  of  the  leisure  afforded  us  by 
the  long  vacation,  to  consider  the  cases  of  Riley  v.  Home  and  Macklin 
V.  fVaterliousc. 

When  goods  are  delivered  to  a  carrier,  they  are  usually  no  longer  under 
the  eye  of  the  owner;  he  seldom  follows  or  sends  any  servant  with  them  to 
the  place  of  their  destination.  If  they  should  be  lost  or  injured  by  the 
grossest  negligence  of  the  carrier  or  his  servants,  or  stolen  by  them,  or 
by  thieves  in  collusion  with  them,  the  owner  would  be  unable  to  prove 
either  of  these  causes  of  loss;  his  witnesses  must  be  the  carrier's  ser- 


424  Riley  v.  Horn^.  M.  T.  1828. 

vants,  and  tliey,  knowing  that  ihey  could  not  be  contradicted,  would 
excuse  their  masters  and  themselves. 

To  give  due  security  to  property,  the  law  has  added  to  that  responsi- 
hility  of  a  carrier,  which  immediately  rises  out  of  his  contract  to  carry 
for  a  reward,  namely,  that  of  taking  all  reasonable  care  of  it,  the  respon- 
sibility of  an  insurer. 

From  his  liability  as  an  insurer,  the  carrier  is  only  to  be  relieved  by 
two  things,  both  so  well  known  to  all  the  country  when  they  happen, 
that  no  person  would  be  so  rash  as  to  attempt  to  prove  that  they  had  hap- 
pened when  they  had  not — namely,  the  act  of  God  and  the  King's  ene- 
mies. 

As  the  law  makes  the  carrier  an  insurer,  and  as  the  goods  he  carries 
may  be  injured  or  destroyed  by  many  accidents  against  which  no  care 
on  the  part  of  the  carrier  can  protect  them,  he  is  as  much  entitled  to  be 
paid  a  premium  for  his  insurance  of  their  delivery  at  the  place  of  their 
destination,  as  for  the  labour  and  expense  of  carrying  them  there.  In- 
deed, besides  the  risk  that  he  runs,  his  attention  becomes  more  anxious, 
and  his  journey  is  more  expensive,  in  proportion  to  the  value  of  his  load. 
If  he  has  things  of  great  value  contained  in  such  small  packages  as  to  be 
objects  of  theft  or  embezzlement,  a  stronger  and  more  vigilant  guard  is 
required  than  when  he  carries  articles  not  easily  removed,  and  which 
ofler  less  temptation  to  dishonesty.  He  must  take  what  is  offered  to 
him  to  carry  to  the  place  to  which  he  undertakes  to  convey  goods,  if  he 
has  room  for  it  in  his  carriage.  The  loss  of  one  single  package  might 
ruin  him. 

By  means  of  negociable  bills,  immense  value  is  now  compressed  into 
a  very  small  compass.  Parcels  containing  these  bills  are  continually 
sent  by  common  carriers.  As  the  law  compels  carriers  to  undertake 
for  the  security  of  what  they  carry,  it  would  be  most  unjust  if  it  did  not 
afford  them  the  means  of  knowing  the  extent  of  their  risk.  Other  insur- 
ers (whether  they  divide  the  risk,,  which  they  generally  do,  amongst 
several  different  persons,  or  one  insurer  undertakes  for  the  insurance  of 
the  whole,)  always  have  the  amount  of  what  they  are  to  answer  for  speci- 
fied in  the  policy  of  insurance. 

If  the  extent  of  risk  is  ascertained  in  cases  in  which  persons  are  not 
obliged  to  insure,  and  if  they  do  insure  may  fix  their  own  rate  of  premi- 
um, there  is  greater  reason  for  ascertaining  it  where  one  is  compelled  to 
become  an  insurer,  and  can  only  charge  what  the  magistrates  in  sessions, 
if  they  think  proper  to  settle  the  rates  of  carriage,  will  allow  under  the 
statute  of  William  and  Mary,  and  where  no  such  rates  are  made,  what  a 
jury  shall  think  reasonable.  It  would  be  inconvenient,  perhaps  impos- 
sible to  have  a  formal  contract  made  for  the  carriage  of  every  parcel  in 
which  the  value  of  the  parcel  should  be  specified,  as  well  as  the  price  to  be 
paid  for  the  carriage.  But  it  would  add  very  little  to  the  labour  of  the 
book-keeper  if  he  entered  the  value  of  each  package,  and  gave  the  per- 
son who  brought  it  a  written  memorandum  of  such  entry,  like  the  slips 
now  made  on  an  agreement  for  a  policy  of  insurance. 

The  giving  of  such  memorandums  would  entirely  put  an  end  to  the 
litigation  which  the  notices  of  carriers  now  give  occasion  to,  and  would 
make  the  practice  of  carriers,  as  nearly  as  circumstances  will  permit,  con- 
formable to  that  of  all  other  insurers.  Perhaps  such  memoranda  might 
bring  the  parties  within  the  reach  of  the  stamp  laws;  and  the  apprehen- 
sion of  this  may  have  prevented  carriers  from  adopting  a  practice  so  et- 


5  Bingham,   217.  425 

fectual  for  their  security,  and  have  driven  them  to  the  expedient  of  giv- 
ing notices  that  they  will  not  be  answerable  beyond  a  certain  sum,  unless 
the  parcels  are  entered  and  paid  for  as  parcels  of  value. 

In  Batson  v.  Donovan,  4  B.  &  A.  21,  the  Court  of  King's  Bench 
considered  a  notice  of  this  sort,  the  knowledge  of  which  was  brought 
home  to  the  party  sending  goods,  as  equivalent  to  a  request  on  the  part 
of  the  carrier  to  know  the  value,  and  that  it  made  it  the  duty  of  the 
owner  of  the  goods  to  apprise  the  carrier  that  the  parcel  was  of  value. 

The  legislature  would  probably  think,  if  its  attention  were  called  to 
the  subject,  that  a  stamp-duty  on  contracts  relative  to  inland  carriage 
would  be  a  very  heavy  and  very  inconvenient  tax,  and  would  remove 
the  objection  to  written  evidence  of  such  contracts. 

A  carrier  has  a  right  to  know  the  value  and  quality  of  what  he  is  re- 
quired to  carry.  If  the  owner  of  the  goods  will  not  tell  him  what  his 
goods  are  and  what  they  are  worth,  the  carrier  may  refuse  to  take  charge 
of  them;  but  if  he  does  take  charge  of  them,  he  waives  his  right  to  know 
their  contents  and  value.  It  is  the  interest  of  the  owner  of  goods  to 
give  a  true  account  of  their  value  to  a  carrier,  as  in  t!ic  event  of  a  loss 
he  cannot  recover  more  than  the  amount  of  what  he  has  told  the  carrier 
they  were  worth;  and  he  cannot  recover  more  than  their  real  worth, 
whatever  value  he  may  have  put  on  them  when  he  delivered  them  to 
the  carrier. 

It  was  decided  in  Gibbons  v.  Paynton,  4  Burr.  2298,  that  any  arti- 
fice made  use  of  to  induce  a  carrier  to  think  that  a  parcel  of  jewellery 
contained  only  things  of  small  value,  would  prevent  the  owner  from  re- 
covering for  the  loss  of  his  parcel. 

In  Kenrigg  v.  Eggleston,  AI.  93,  it  was  held  that  the  owner  was  not 
required  to  state  all  the  contents  of  the  parcel,  but  it  was  for  the  carriers 
to  make  a  special  acceptance.  In  Tyly  and  Others  v.  Morrice,  Carth. 
485,  in  which  the  preceding  case  is  recognised  and  confirmed,  it  is  said 
that  the  true  principle  is,  that  the  carrier  is  only  liable  for  what  he  i* 
fairly  told  of.  In  Tilchbnrne  v.  Ulutc,  Str.  1  1.5,  it  was  determined 
that  a  carrier  is  answerable  for  money,  although  lie  was  not  told  that  the 
box  delivered  to  him  contained  any  money,  unless  he  was  tf)lc[  that  tlie 
box  did  not  contain  money,  or  he  accepted  it  on  the  condition  that  it 
did  not  contain  moncv- 

It  may  be  collected  from  these  authorities  that  it  is  the  duty  of  th^ 
carrier  to  enquire  of  the  owner  as  to  the  value  of  his  goods,  and  if  he  ne- 
glects to  make  such  enquiry,  or  to  make  a  special  acceptance,  and  can- 
not prove  knowlfMJgc  of  a  notice  limiting  his  responsibility,  he  is  re- 
.sponsiblc  for  the  full  value  of  the  goods,  however  great  it  may  be.  Thi.'j 
is  a  convenient  rule;  it  imposes  no  difliculty  on  the  carrier,  lie  knows 
liis  own  business,  and  the  laws  relative  to  it.  Many  persons  who  have 
occasion  to  send  their  goods  by  carriers,  are  entirely  ignorant  of  what 
they  ought  to  do  to  insure  their  goods.  Justice  and  policy  rocjuiru  that 
the  carriers  should  be  obliged  to  tell  them  what  they  should  do. 

Although  a  carrier  may  prove  that  the  owner  of  goods  knew  that  the 
carrier  had  liniited  his  responsibility  by  a  suflicient  notice,  yet,  if  a  los^ 
be  occasioned  by  gross  negligence,  the  notice  will  not  protect  him. 
Every  man  that  undertakes  for  a  reward  to  do  any  service,  o!)Iiges  him- 
self to  use  due  diligence  in  the  pfrf(irmance  of  that  srrvic'o.  Independ- 
ently of  his  responsibility  as  an  insurer,  a  carrier  i.^  liable  for  gross  negli- 
gence. This  point  is  settled  by  Slrat  v.  Fagg,  5  B.  &.  A.  .342;  Wright 
VOL.  XV.  54 


426  Riley  v.  Hornb.  M.  T.  1828. 

V.  Sne/l,  Id.  350;  Eirkett  v.  TVillan,  2  B.  &  A.  356;  Beck  r.  Evans, 
IG  East,  244;  and  Bodenhanw.  Bennett,  4  Price,  31. 

The  jury  are  to  decide  what  is  gross  negligence.  We  may,  however, 
observe,  that  the  most  anxiously-attentive  person  may  slip  into  inadver- 
tence or  want  of  caution.  Such  a  slip  would  be  negligence,  but  not 
sucii  a  degree  of  negligence  as  would  deprive  a  carrier  of  the  protection 
of  his  notice.  The  notice  will  protect  him,  unless  the  jury  think  that 
no  prudent  person,  having  the  care  of  an  important  concern  of  his  own, 
would  have  conducted  himself  with  so  much  inattention  or  want  of  pru- 
dence as  the  carrier  has  been  guilty  of. 

If  a  notice  touching  the  responsibility  of  the  carrier  be  given,  it  mat- 
ters not  by  whom  it  is  given,  or  in  what  form,  if  it  tells  the  owner  of 
the  goods  that  the  carrier  by  whom  he  proposes  to  send  them  will  not 
undertake  for  their  safe  conveyance,  unless  paid  a  premium  proportioned 
to  their  value. 

We  have  established  these  points, — that  a  carrier  is  an  insurer  of  the 
goods  which  he  carries;  that  he  is  obliged  for  a  reasonable  reward  to  car- 
ry any  goods  to  the  place  to  which  he  professes  to  carry  goods  that  are 
offered  him,  if  his  carriage  will  hold  them,  and  he  is  informed  of  their 
quality  and  value;  that  he  is  not  obliged  to  take  a  package,  the  owner  of 
■which  will  not  inform  him  what  are  its  contents,  and  of  what  value  they 
are;  that  if  he  does  not  ask  this  information,  or  if,  when  he  asks  and  is 
not  answered,  he  takes  the  goods,  he  is  answerable  for  their  amount, 
whatever  that  may  be;  that  he  may  limit  his  responsibility  as  an  insurer, 
by  notice;  but  that  a  notice  will  not  protect  him  against  the  consequen- 
ces of  a  loss  by  gross  negligence. 

Let  us  see  how  these  principles  bear  on  the  two  cases  nowxinderour 
consideration. 

In  Macklin  v.  Waterhouse,  the  notice  was  in  these  words:  '*Take 
notice,  that  the  proprietor  of  this  office  will  not  be  answerable  for  any 
parcels  or  packages  above  the  value  of  51.,  unless  entered  as  such  and 
paid  for  accordingly."  A  Mr.  Weeks  was  the  keeper  of  this  office,  at 
which  parcels  were  received  and  booked  for  several  coaches,  belonging 
to  different  proprietors.  No  evidence  was  given  that  Weeks,  the  pro- 
prietor of  the  office,  was  the  same  Weeks  who  was  one  of  the  defendants, 
or  that  the  plaintiff  or  his  agent  knew  that  the  office-keeper  had  any  in- 
terest in  this  coach. 

No  one  can  collect  from  the  notice  that  the  proprietor  of  the  office  has 
any  thing  to  do  with  any  of  the  coaches  that  take  parcels  from  that  office. 
If  he  had  by  his  notice  told  those  who  had  occasion  to  go  to  his  office, 
that  none  of  the  proprietors  of  coaches  who  took  parcels  from  it  would 
be  responsible,  such  a  notice  would  have  been  sufficient.  The  persons 
who  carry  parcels  to  coach-offices  are  generally  servants,  and  other  per- 
sons who  cannot  have  much  knowledge  of  matters  of  this  sort.  The 
notice  should  be  plain  and  easily  understood  by  such  persons.  They  are 
not  to  be  required  to  determine  whether  a  notice  given  by  the  keeper 
of  a  coach-office  must  apply  to  the  risks  undertaken  by  all  the  coach- 
proprietors  whose  coaches  arc  loaded  from  that  office.  This  is  a  case 
without  a  sufficient  notice,  and  the  defendants  are  subject  to  the  unlimi- 
ted responsibility  of  common  carriers.  It  is  not  necessary  to  decide  in 
this  case  whether,  if  it  had  been  known  tha't  Weeks  was  a  proprietor  of 
ihe  coach,  a  notice  given  as  a  proprietor  of  the  office,  could  form  a 
special  condition  of  his  contract  as  a  coach-proprietor. 


5  Bingham,  217.  427 

This  is  an  answer  to  the  point  made  at  the  trial,  that  the  notice  in  this 
case  should  have  been  stated  in  the  declaration,  for  as  there  was  no  suf- 
ficient notice,  it  is  the  same  as  if  there  was  no  notice. 

But  it  was  said,  that  the  declaration  stated,  that  the  loss  was  through 
the  negligence  of  the  defendant,  and  that  there  was  no  proof  of  any 
negligence.  Probably  not  sufficient  proof  of  gross  negligence.  But,  as 
there  was  no  notice,  the  allegation  of  loss  by  negligence  is  not  a  mate- 
rial allegation,  and  no  proof  of  it  was  necessary.  If,  however,  any  proof 
of  such  allegation  was  necessary,  a  loss,  the  cause  of  which  is  not  shewn, 
is  sufficient  evidence  of  simple  negligence,  although  not  of  gross  negli- 
gence. 

But  the  book-keeper  deposed  to  a  conversation  with  the  servant  who 
brought  the  parcel,  which  this  servant  did  not  contradict;  but  merely 
said,  that  she  did  not  recollect  it.  It  was  not  considered  at  the  trial  that 
what  passed  in  this  conversation  limited  the  responsibility  of  the  defend- 
ant I  did  not,  therefore,  put  it  to  the  jury  to  say  whether  they  be- 
lieved that  a  conversation  to  the  effect  deposed  to  had  passed.  The 
book-keeper  swore,  that  the  woman  who  brought  the  parcel  said,  "  that 
it  was  a  parcel  of  consequence."  That  he  asked  her  if  it  was  a  parcel 
of  value:  she  said  that  it  was,  but  that  she  did  not  know  what  its  value 
was.  The  book-keeper  told  her  it  *'  ought  to  be  insured."  These  were 
the  words  used  by  the  witness.  To  talk  of  insurance  to  a  country  servant 
was  not  the  way  to  inform  her  what  it  vvas  proper  for  her  to  do.  This 
agent  of  the  defendants'  should  have  told  her,  when  she  said  she  did  not 
know  the  value  of  the  parcel,  to  go  back  to  her  master  and  ask  him  what 
the  value  of  his  parcel  was,  that  the  agent  might  know  what  to  charge 
him  for  the  carriage  of  it;  and  that,  until  he  knew  the  risk  which  his 
employers  were  to  be  answerable  for,  he  would  not  take  charge  of  the 
parcel.  Instead  of  this,  he  takes  it  and  it  is  lost,  and  it  was  the  only 
parcel  that  was  lost.  That  I  might  conform  to  the  opinion  of  the  ma- 
jority of  the  Court  in  Batson  v.  Donovan.,  I  asked  the  jury  wiiether 
the  agent  of  the  plaintiff  had  been  guilty  of  any  negligence,  or  failed  in 
her  duty  to  the  carriers.  They  answered  in  the  negative,  and  I  think 
their  answer  vvas  the  proper  one.  A»  the  carrier  took  the  parcel  with- 
out requiring  to  know  its  value,  and  without  insisting  that  it  should  be 
entered  and  paid  for  according  to  its  value,  he  took  it  without  any  limita-. 
tion  of  his  common-law  responsibility,  and  must  be  answerable  for  its 
loss. 

It  is  unnecessary  for  us  to  decide  whether  the  entrusting  valuable 
property  to  a  servant,  of  whom  the  carrier  chose  to  give  no  account  at 
the  trial,  was  sufficient  to  authorize  the  jury  to  find  that  the  carrier  had 
been  guilty  of  that  degree  of  negligence  which  would  deprive  him  of 
the  protection  of  a  proper  notice. 

In  Riley  v.  Home  I  was  of  opinion,  at  the  (rial,  tlmt  the  nnficc  did 
not  apply  to  the  journey  to  London.  The  Court  of  King's  Bench  has 
determined  tliat  such  a  notice  applies  to  the  journey  back  as  well  as  to 
the  journey  out. 

A  carria;fe  that  returns  to  a  place  must  have  gone  froni  it,  and,  there- 
fore, a  notice  from  the  proprietors  of  coaches  going  ivom  a  place  may  be 
applied  to  their  return  journey. 

Hut  to  give  eflect  to  such  a  notice  in  ihe  present  instance  it  must  ho 
proved  that  the  person  who  sent  goods  nn  that  same  joui  lu^v  knew  that 
the  coaofc  came  from  the  George  and   IWuc  Boar  in   jjondon.      in   this 


423  Langston  v.  Pole.   M.  T.  1828, 

case,  the  plaintiffs  had  establishments  in  the  country  and  in  Londdh, 
and  were  constantly  in  the  habit  of  sending  parcels  from  London  to  the 
country,  and  from  the  country  to  London,  by  this  coach.  It  is  most 
probable,  therefore,  that  the  jury  would  have  found  that  the  plaintiffs 
knew  that  the  carriage  came  from  the  George  and  Blue  Boar,  and  that 
this  notice  applied  to  its  journey  out  and  home.  As  I  thought  that  the 
notice  was  not  so  plain  and  direct  as  it  ought  to  have  been,  I  did  not, 
therefore,  leave  it  to  the  jury  to  say,  whether  the  plaintiffs  knew  that 
the  coach  was  one  that  started  from  the  George  and  Blue  Boar. 

Tiiere  ought  to  be  a  new  trial  in  this  case,  that  this  question  may  be 
put  to  the  jury. 

In  Mack/in  v.  JVaterhousc,  the  rule  must  be  discharged,  and  in  Riley 
V.  Home  there  must  be  a  new  trial. 


LANGSTON  v.  POLE  and  Others.— p.  228. 

Devise  to  J.  H.  L.  (devisor's  eldest  son)  for  life;  remainder  to  trustees  to  preserve, 
&c. ;  remainder  to  J.  H.  L.'s  second,  third,  fourth,  fifth,  and  all  and  every  other 
the  son  and  sons  of  the  body  of  J.  H.  L.  severally  and  successively  in  seniority 
of  age  in  tail  male;  remainder  to  devisor's  second  and  other  sons  successively  in 
tail  male;  remainder  to  first  and  other  daughters  of  the  body  of  J.  H.  L.  suc- 
cessively in  tail  general;  remainder  to  devisor's  eldest  daughter,  M.  S.  L.,  for 
life;  remainder  to  trustees  to  preserve,  &;c.;  remainder  to  her  first  and  other 
sons  successively  in  tail  male;  remainder  to  her  first  and  other  daughters  suc- 
cessively in  tail  general;  like  remainders  for  life  (with  remainders  to  trustees 
to  preserve,  &c.)  to  devisor's  other  daughters  successively,  with  like  remain- 
ders in  tail  to  their  respective  children;  remainder  to  devisor's  sister  in  fee; 
various  terms  to  trustees  to  raise  money;  and  a  power  to  the  party  in  pos- 
session of  the  premises  devised,  to  charge  them  for  the  portions  and  main- 
tenance of  younger  children,  male  and  female,  accompanied  with  a  provision, 
that  in  case  of  any  younger  child's  obtaining  a  portion,  and  afterwards  becoming 
entitled  to  the  premises  devised,  the  portion  of  such  younger  child  should  go 
over  to  the  other  younger  children:  Held,  that  the  eldest  son  of  J.  H.  L.  took 
an  estate  tail  in  the  premises  expectant  on  the  death  of  J.  H.  L. 

The  following  case  was  sent  from  the  Court  of  Chancery  for  the  opin- 
ion of  this  Court: 

John  Langston,  Esq.  was  at  the  time  of  making  his  will  hereinafter  men- 
tioned, and  at  the  time  of  his  death,  seised  in  fee-simple  of  divers  manors, 
messuages,  lands,  tenements,  and  hereditaments  situated  in  the  counties 
of  Oxford  and  Middlesex;  and  duly  made  and  published  his  last  will  and 
testament  in  writing,  bearing  date  the  2Sth  day  of  July  1801,  which  was 
executed  and  attested  in  manner  by  law  required  to  pass  freehold  estates 
by  devise,  and  he  thereby  gave  and  devised  all  his  manors,  messuages, 
farms,  lands,  tenements,  and  hereditaments  situated  and  being  in  the  se- 
veral counties  of  Oxford  and  Middlesex  or  elsewhere  in  England  (ex- 
cept his  sliares  in  the  New  River  Company),  unto  John  Pollexfen  Bas- 
tard, Esq.,  John  William  Hope,  Esq.,  and  Charles  Morice  Pole,  Esq. 
(now  Sir  Charles  Morice  Pole,  Bart.),  their  heirs  and  assigns,  to  the  uses 
after  mentioned;  (that  is  to  say,)  to  the  use  of  the  said  testator's  son,  the 
said  plaintiff,  James  Houghton  Langston,  for  and  during  the  term  of  his 
natural  life,  without  impeachment  of  waste; — and  from  and  after  the  de- 
termination of  that  estate  by  forfeiture  or  otherwise  in  his  lifetime,  to 
tile  use  of  certain  trustees  therein  named,  and  their  heirs  during  the  life 
of  the  said  plaintiff,  in  trust,  by  the  usual  ways  and  means  to  preserve  the 


5  Bingham,  228.  429 

contingent  uses  and  estates  thereinafter  limited; — with  remainder  to  the 
use  of  the  second,  third,  fourth,  fifth,  and  all  and  every  other  the  son  and 
sons  of  the  hody  of  the  said  plaintiff  hw (My  to  be  begotten,  severally, 
successively,  and  in  remainder  one  after  another  as  they  and  every  of 
them  should  be  in  seniority  of  age  or  priority  of  birth,  and  the  several 
and  respective  heirs  male  of  the  body  and  bodies  of  all  and  every  such 
son  and  sons  lawfully  issuing,  the  elder  of  such  sons,  and  the  heirs  male 
of  his  body  to  be  always  preferred,  and  to  take  before  the  younger  of 
such  son  and  sons  and  the  heirs  male  of  his  and  their  body  and  bodies 
issuing; — with  remainder  to  the  use  of  the  said  testator'' s  second  and  other 
sons  successively  in  tail  male; — with  remainder  to  the  use  of  certain 
other  trustees  therein  named,  their  executors,  administrators,  and  assigns, 
for  the  term  of  500  years  upon  the  trusts  and  for  the  interests  and  pur- 
poses thereinafter  mentioned; — with  remainder  to  the  use  of  the  first, 
second,  third,  fourth,  fifth,  and  all  and  every  other  the  c?a?f^A/er  and 
daughters  of  the  body  of  the  said  plaintiff  lawfully  to  be  begotten, 
severally,  successively,  and   in  remainder  one  after  another  as  they  and 
every  of  them  should  be  in  seniority  of  age  and  priority  of  birth,  and  the 
several  and  respective  heirs  of  the  body  and  bodies  of  all  and  every  such 
daughter  and  daughters  lawfully  issuing,  the  elder  of  such  daughters, 
and  the  heirs  of  her  body  to  l;e  always  preferred  and  to  take  before  the 
younger  of  such  daughter  and  daughters,  and  the  heirs  of  her  and  their 
body  and  bodies  issuing; — and  for  default  of  such  issue,  to  the  use  of 
other  trustees  therein  named,   their  executors,  administrators,  and  as- 
signs for  and  during  the  term  of  ninety-nine  years,  upon  the  trusts  and 
for  the  intents  and  purposes  thereinafter  mentioned; — with  remainder  to 
the  use  of  the  said  testator'' s  eldest  daughter  Maria  Sarah  Langston,  and 
her  assigns  for  and  during  the  term  of  her  natural  life,  without  impeach- 
ment of  waste; — and  from  and  after  the  determination  of  that  estate  by 
forfeiture  in  her  lifetime,  to  the  use  of  the  trustees  thereinafter  named  for 
preserving  contingent  remainders  and  their  heirs  during  the  life  of  her 
the  said  testator's  said  daughter,  in  trust  by  the  usual  ways  and  means  to 
preserve  the  contingent  uses  and  estates  thereinafter  limited; — with  re- 
mainder to  the  use  of  the  first,  second,  third,  fourth,  fifth,  and  all  and 
every  other  the  son  and  sons  of  the  hotly  of  her  the  said  testator's  said 
daughter  lawfully  to  be  begotten,  severally,  successively,  and  in  remain- 
der one  after  another  as  they  and  every  of  them  should  be  in  seniority  of 
age  and  priority  of  birth,  and  the  several  and  respective  heirs  male  of  the 
body  and  bodies  of  all  and  every  such  son  and  sons  lawfully  issuing,  the 
elder  of  such  sons  and  the  heirs  male  of  his  body  to  be  always  preferred 
and  to  take  before  the  younger  of  such  son  and  sons  and  the  heirs 
male  of  his  and   their  body    and   bodies  issuing; — and   for  default  of 
such   issue,   to  the  use  of  other  trustees  therein   named,  their  execu- 
tors,  administrators,   and  assigns  fi)r  the  term  of  six  hundred    years, 
upon  the  trusts  and  for  the  intents  and  purposes  thereinafter  mentioned; 
— with  remainder  to  the  use  of  the  first,  second,  third,  fourth,  (ifih,  and 
all  and  every  other  the  daughter  and  daughters  of  the  body  of  her  the 
said  testator's  said  daughter  Maria-Sarah  lawfully  to  be  begotten,  several- 
ly, surrcssivcly,  and  in  remainder  one  after  another  as  they  and  every  of 
them  should  be  in  seniority  of  age  and  priority  of  birth,  and  the  several 
and  respective  heirs  of  the  body  and  bodies  of  nil  and  every  such  daugh- 
ter and  dnughters  lawfully  issuing,  the  older  of  surh   daughters  and  thn 
heirs  of  her  body  to  be  alway.t  preferred,  and  to  take  before  the  younger 


430  Langston  v.  Pole.  M.  T.  1828. 

of  such  daughter  and  daughlers  and  the  heirs  of  her  and  their  body  and 
bodies  issuing;--and  for  default  of  sucii  issue,  like  remainders  with  like 
attendant  terms  to  testator's  dauj2;liters  Elizabeth-Catharine,  Caroline, 
Agatlia-Maria-Sophia,  Henrietta-Maria,  and  their  issue  respectively; — 
remainder  to  sixth  and  other  daughters  thereafter  to  be  born,  successive- 
ly in  tail  general; — remainder  to  trustees  for  term  of  1500  years  on  trusts 
thereinafter  mentioned; — remainder  to  the  use  of  testator's  sister,  Sarah, 
the  wife  of  Peter  Cazalet,  her  heirs  and  assigns  for  ever: 

And  the  said  testator  by  his  said  will  did  declare  that  as  for  and  con- 
cerning the  said  term  of  500  years  by  his  said  will  limited  as  aforesaid, 
the  same  term  was  limited  unto  the  said  trustees  thereof,  their  executors, 
administrators,  and  assigns,  upon  trust  that  in  case  there  should  be  no  son 
of  the  body  of  the  said  plaintiff,  James  Houghton  Langston,  nor  any 
future  son  of  his  the  said  testator's  own  body,  or  there  being  any  such 
son  or  sons  if  he  and  they  should  all  die  without  issue  male  before  any 
of  them  should  attain  the  age  of  twenty-one  years,  and  there  should  be 
two  or  more  daugliters  of  the  body  of  his  (the  said  testator's)  said  son, 
the  said  plaintiff,  James  Houghton  Langston,  then  they  the  same  trus- 
tees and  the  survivor  of  them,  and  the  executors,  administrators,  and  as- 
signs of  such  survivor  should,  after  the  decease  of  his  (the  said  testator's) 
said  son,  the  said  plaintiff,  James  Houghton  Langston,  and  such  failure 
of  issue  male  of  his  body,  and  of  his  the  said  testator's  own  body  as  afore- 
said, by  mortgage  or  sale  or  other  disposition  of  all  or  any  part  of  the 
premises  comprised  in  the  said  term  of  500  years,  or  by  the  rents  and 
profits  thereof,  or  by  any  other  wa3'S  or  means  whatsoever,  levy  and 
raise  such  sum  and  sums  of  money  for  the  portion  and  portions  of  all  and 
every  such  daughter  and  daughters  (other  than  and  besides  an  eldest 
or  only  daughter),  as  thereinafter  mentioned;  (that  is  to  say,)  in  case 
there  should  be  but  one  such  daughter,  not  being  an  eldest  or  only 
daughter,  the  full  sum  of  20,000/.  for  the  portion  of  such  one  daughter 
to  be  paid  to  such  one  daughter  at  the  age  of  twenty-one  years  or 
day  of  marriage,  which  should  first  happen  after  the  commencement 
of  the  said  term  of  500  years  in  possession;  but  if  such  only  daughter 
should  have  attained  such  age  or  be  married  before  such  commencement, 
then  to  be  paid  to  her  immediately  after  such  commencement:  And  if 
there  should  be  two  or  more  such  younger  daughters,  then  the  sum  of 
40,000/.  for  the  portions  of  such  two  or  more  of  them,  and  to  be  paid  and 
divided  unto  or  between  and  among  them,  or  any  one  or  more  of  them, 
and  to  be  payable  at  such  days  or  times  and  in  such  parts,  shares,  and 
proportions,  and  subject  to  such  provisos,  conditions,  and  limitations 
over  (such  limitations  over  to  be  for  the  benefit  of  some  or  one  of  them), 
as  he  the  said  plaintiff,  James  Houghton  Langston,  at  any  time  or  times 
during  his  life,  by  any  writing  or  writings  with  or  without  power  of  re- 
vocation and  new  appointment,  scaled  and  delivered  by  him  in  the  pre- 
sence of  and  attested  by  two  or  more  credible  witnesses,  or  by  his  last 
will  and  testament  in  writing,  or  any  codicil  thereto,  signed  in  the  pre- 
sence of  and  attested  by  three  or  more  credible  witnesses,  should  direct  or 
appoint;  and  for  want  of  such  direction  or  appointment,  to  be  paid  to 
such  two  or  more  younger  daughters,  and  to  be  shared  and  divided  be- 
tween and  among  them,  and  in  equal  parts,  shares,  and  proportions, 
Bhare  and  share  alike: 

Then,  after  specifying  the  times  and  mode  of  payment,  it  was  pro- 
vided always,  that  if  any  such  younger  daughter  should  depart  this  life, 


5  Bingham,  228.  431 

or  become  an  eldest  daughter,  and  as  such  become  entitled  in  possession 
to  the  said  manors,  and  other  hereditaments  therein-before  devised,  be- 
fore she  should  attain  her  age  of  twenty-one  5'ears,  or  be  iharried,  or 
before  such  other  time  or  times  as  should  or  might  be  appointed  for  the 
payment  of  her  or  their  portion  or  portions  as  aforesaid,  the  portion  or 
sum  of  money  provided  for  each  such  daughter  or  daughters  so  dying  or 
becoming  an  eldest  daughter,  should  from  time  to  time  go  and  accrue  to 
the  survivors  or  survivor,  and  others  or  other  of  the  said  younger 
daughters,  and  should  be  equally  divided  between  such  survivors  or 
others  of  them  (if  more  than  one)  share  and  share  alike,  and  the  same 
should  be  paid  and  payable  at  such  respective  days  and  times,  and  should 
go  in  the  same  manner  to  such  surviving  and  other  daughter  and  daugh- 
ters as  thereby  provided  and  declared,  touching  their  original  portion  or 
portionsrandincaseofthedeathofany  other  or  others  of  the  said  daughters, 
or  if  uny  other  or  others  of  them  should  become  an  eldest  daughter, 
and  entitled  as  aforesaid,  before  she  or  they  should  have  attained  such 
ages  or  times  as  aforesaid,  then  all  and  every  such  accruing  or  surviving 
share  and  shares  should,  from  time  to  time,  again  be  subject  and  liable 
to  such  further  right,  chance,  contingency,  or  condition  of  accruer  or 
survivorship  to  the  survivors  and  survivor,  and  others  and  other  of  the 
said  younger  daughters  as  therein-before  declared,  touching  her  or  their 
original  portion  or  portions  ;  provided,  nevertheless,  that  if  the  said 
younger  daughters  should  be  reduced  to  one,  there  should  not  be  raised 
for  the  portion  of  such  one  younger  daughter,  by  reason  of  any  such 
survivorship,  any  sum  or  sums  that  would  in  the  whole  exceed  the  prin- 
cipal sum  of  20,000/. 

Then  followed  provisions  for  the  maintenance  and  education  of  the 
younger  daughters  out  of  the  interest  of  the  money  to  be  raised: 

And  as  to,  for,  and  concerning  the  said  term  of  ninety-nine  years 
therein-before  limited  to  trustees,  he,  the  said  testator,  thereby  declared 
that  the  same  term  was  limited  unto  them,  their  executors,  administra- 
tors, and  assigns,  upon  trust  that  in  case  there  should  he  no  son  or 
daughter  of  the  body  of  him  the  said  plaintiff,  James  Houghton  Langs- 
ton,  nor  any  future  son  of  the  said  testator's  body,  or  there  being  any 
such  son  or  sons,  daughter  or  daughters,  if  all  and  every  such  son  and 
sons  should  depart  this  life  without  issue  male,  and  all  and  every  such 
daughter  and  daughters  should  depart  this  life  without  issue,  before  any 
of  them  should  attain  his,  her,  or  their  age  or  ages  of  twenty-one  years, 
then  they  the  same  trustees,  and  the  survivor  of  them,  and  the  execu- 
tors, administrators,  and  assigns  of  such  survivor,  should,  after  the  de- 
cease of  the  said  plaintilf,  James  Houghton  I^angston,  and  such  fiilure  of 
issue  as  aforesaifl,  by  mortgage  or  sale,  or  other  disposition  of  all  or  any 
part  of  the  hereditaments  comprised  in  the  said  term  of  ninety-nine  years, 
or  by  the  rents  and  profits  thereof,  or  by  any  other  ways  and  means 
levy  and  raise  for  the  use  and  benefit  of  each  of  the  s^id  testator's  young- 
est daughters,  Eli/.abcth-Catharine,  Caroline,  Agatha-Maria-Sophia,  and 
Henrietta-Maria  respectively,  or  such  of  them  as  should  not  from  time 
to  time  be  in  the  actual  possession  of,  or  entitled  to,  the  said  heredita- 
ments, under  and  by  virtue  of  the  limitations  contained  in  the  said  will, 
for  and  during  the  term  of  their  respective  natural  lives,  an  annuity  or 
yearly  sum  of  .GOO/. ,  clear  of  all  deductions,  and  should  pay  thn  same  unto 
them,  the  said  testator's  said  youngest  daughters  respectively,  or  their 
respective  assigns,  by  equal  half  yearly  payments,  on  the  85th  day  of 


432  LwGSTON  V.  Pole.  M.  T.  1828. 

March,  and  29th  day  of  Scptcmhrr  in  every  year,  and  should  make  the 
fir.st  payment  thereof  on  such  of  the  said  days  as  sliould  next  liappen  af- 
ter the  commencement  of  the  said  term  of  ninety-nine  years  in  posses- 
sion: provided  further,  ti>at  in  case  there  should  be  no  son  or  daughter  of 
the  body  of  her,  the  said  testator's  said  dauf^hier,  Maria-Sarah,  or  there 
being  any  such  son  or  sons,  daujijhter  or  daughters,  if  all  and  every  of 
such  son  or  sons,  should  depart  this  life  without  issue  male,  and  all  and 
every  such  daughter  and  daughters  should  depart  this  life  without  issue, 
before  any  of  them  should  attain  the  age  of  twenty-one  years,  and  if  the 
said  testator's  said  youngest  daughters,  Caroline,  Agatha-Maria-Sophia, 
and  Henrietta-Maria,  or  any  of  them,  should  be  then  living,  then  upon 
trust  that  they,  the  same  trustees,  and  the  survivor  of  them,  and  the  ex- 
ecutors, administrators,  and  assigns  of  such  survivor,  should  after  the  se- 
veral deceases  of  the  said  plaintiff,  James  Houghton  Langston,  and  the 
said  testator's  daughter,  JNIaria-Sarah,  and  failure  of  all  such  issue  as 
aforesaid,  by  the  ways  and  means  aforesaid,  levy  and  raise  for  the  use 
and  benefit  of  each  of  them  the  said  testator's  said  three  youngest  daugh- 
ters, Caroline,  Agatha-Maria-Sophia,  and  Henrietta-Maria,  respectively, 
or  such  of  them  as  should  not  from  time  to  time  be  in  the  actual  posses- 
sion of  or  entitled  to  the  said  manors  and  other  hereditaments,  under  and 
by  virtue  of  the  limitations  contained  in  the  said  will,  for  and  during  the 
term  of  their  respective  natural  lives,  a  yearly  sum  of  300/.,  clear  of  all 
taxes  and  deductions  whatsoever,  over  and  above  the  said  annuity  or 
clear  yearly  sum  of  500/.  therein-before  provided  for  each  of  them,  the 
said  testator's  youngest  daughters,  and  should  pay  the  same  unto  them, 
the  sai,d  testator's  said  three  youngest  daughters  respectively,  or  their 
respective  assigns,  by  equal  half-yearly  payments  on  such  days  and  times 
and  together  with  the  said  annuities  or  clear  yearly  sums  of  500/., there- 
in-before provided  for  each  such  youngest  daughter,  and  in  manner  there- 
in-before directed  touching  the  said  respective  annuities  of  500/.;  pro- 
vided further,  that  in  case  any  of  them,  his  said  youngest  daughters,  for 
whom  annuities  were  therein-before  provided,  should  become  entitled  in 
possession  to  the  said  manors  and  other  hereditaments  therein-before  de- 
vised, by  virtue  of  the  limitations  contained  in  the  said  will,  then  and  in 
such  case,  and  from  thenceforth,  the  said  annuities  or  clear  yearly  sums 
therein-before  provided  for  such  daughter  or  daughters  respectively,  so 
becoming  entitled  as  aforesaid,  should  cease,  determine,  and  be  no 
longer  paid  or  payable:  provided  further,  that  afterpayment  of  the  se- 
veral annuities  therein-before  provided  for  his  said  youngest  daughters, 
and  all  arrears  thereof  respectively,  the  residue  and  overplus  of  the  rents 
and  profits  (if  any)  should  be  had  and  received  by  the  person  and  per- 
sons respectively,  who,  for  the  time  being,  should  be  next  entitled  to  the 
reversion  or  the  remainder  of  the  said  premises  immediately  expectant 
on  the  determination  of  the  said  term  of  ninety-nine  years,  to  and  for  her 
and  their  own  use  and  benefit. 

There  were  declarations  of  trusts  similar  to  those  of  the  term  for  500 
years,  upon  five  other  terms,  one  for  each  of  the  testator's  five  daugh- 
ters, in  case  there  should  be  no  son  or  daughter  of  the  body  of  the 
plaintiff,  nor  any  future  son  of  the  testator's  body,  or  there  being  any 
such  son  or  sons,  daughter  or  daughters,  if  all  and  every  such  son  and 
sons  should  die  without  issue  male,  and  all  and  every  such  daughter  and 
daughters  should  die  without  issue  before  any  of  them  should  attain 
twenty-one;  and  in  case  there  should  be  no  son  of  the  body  of  the  daugh- 


5  Bingham,  228.  433 

ter  to  whom  the  term  related;  or  there  being  any  such  son  or  sons,  if  he 
and  they  should  die  without  issue  male  before  twenty-one,  and  there 
should  be  two  or  more  daughters  of  the  body  of  the  daughter  to  whom  the 
term  related. 

Under  a  sixth  term,  trustees  were  to  raise  80,000/.  for  the  testator's 
sister  Mary-Ann,  wife  of  George  Arnold,  and  his  nephew  Houghton 
Okeover,  in  case  there  should  be  no  son  or  daughter  of  all  the  testator's 
children,  nor  any  future  son  or  daughter  of  the  testator's  body,  or,  there 
being  such,  all  should  die  without  issue  before  they  attained  the  age  of 
twenty-one. 

The  plaintiff  was  empowered  to  jointure. 

And  the  said  testator  thereby  also  provided  and  directed,  that  it  should 
be  lawful  for  the  said  plaintiff,  from  time  to  time,  during  his  natural 
life,  in  case  there  should  be  any  child  or  children  of  his  body  lawfully 
begotten,  other  than  and  besides  an  eldest  or  only  son,  by  any  deed  or 
deeds,  instrument  or  instruments  in  writing,  to  be  by  him  sealed  and 
delivered  in  the  presence  of,  and  attested  by,  two  or  more  credible 
witnesses,  with  or  without  power  of  revocation,  or  by  his  last  will  and 
testament  in  writing,  to  be  by  him  signed,  sealed,  and  published  in  the 
presence  of,  and  attested  by,  three  or  more  credible  witnesses,  to 
charge  all  or  any  part  of  the  said  manors,  messuages,  farms,  lands,  tene- 
ments, tithes,  and  hereditaments  therein-before  devised  with  and  for 
the  raising  and  payment  of  any  principal  sum  or  sums  of  money,  not 
exceeding  in  the  whole  the  gross  sum  of  25,000/.,  for  the  portion  or 
portions  of  any  one,  two,  or  more  of  the  younger  son  or  sons,  or  daugh- 
ter or  daughters  of  the  body  of  him  the  said  plaintiff,  lawfully  to  be 
or  begotten,  born  in  his  lifetime,  or  within  due  time  after  his  decease,  to 
be  paid  and  payable  unto,  and  to  vest  in  such  younger  son  or  sons,  daugh- 
ter or  daughters  respectively,  at  such  time  or  times,  and  in  such  shares  and 
proportions,  with  such  clauses  of  survivorship,  and  in  such  manner  as  he 
the  said  plaintiff  should  by  such  deed  or  deeds,  instrument  or  instruments 
in  writing,  or  last  will  and  testament,  and  to  be  executed  and  attested 
as  aforesaid,  direct,  limit,  and  appoint:  and  also  to  charge  the  same  pre- 
mises, or  any  part  thereof,  with  or  for  the  payment  of  any  sum  or 
sums  of  money  yearly  or  otherwise,  as  he  should  think  fit,  for  the 
maintenance  of  such  younger  son  or  sons,  or  daughter  or  daughters 
from  the  time  of  his  death  until  such  portion  or  portions  respectively 
should  become  payable,  not  exceeding  the  interest  of  such  portions 
after  the  rate  of  4/.  per  cent,  per  annum. 

And  the  said  testator  thereby  further  willed  and  directed,  that  in  like 
manner  it  should  be  lawful  fur  each  of  them  his  said  daughters  therein- 
before named,  to  whom  estates  for  life  in  his  said  devised  estates  were 
therein-before  limited,  when  and  as  they  should  respectively  be  in  the 
actual  possession  of  his  said  devised  estates,  in  case  there  should  be  any 
ciiild  or  chihircn  of  their  respective  bodies  lawfully  begotten,  other  than 
and  besides  an  eldest  or  only  son,  by  any  sucii  or  the  like  deed  or  deeds, 
instrument  or  instruments  in  writing,  to  l)C  executed  and  attested  as 
aforesaid,  or  by  their  respective  last  wills  and  testaments,  or  any  writing 
or  writings  of  appointment  in  the  nature  thereof,  to  be  signed,  sealed, 
and  published  as  .iforrsaid,  to  charge;  all  or  any  I)art  of  the  said  devised 
estates,  with  and  for  the  raising  and  payment  of  any  sum  or  sums  of  mon- 
ey, not  exceeding  in  the  whole  the  gross  sum  of  25,000/. ,  for  the  portion 
or  portions  of  any  one,  two,  or  more  of  their  respective  younger  children- 

VOL.  XV.  55 


434  LANLiSTON  V.  Pole.  M.  T.  1828. 

with  the  hke  power  of  providing  maintenance,  and  limiting  a  term  oi 
years  for  raising  the  said  portion  or  portions  and  maintenance,  and  in 
such  and  the  like  manner,  to  all  intents  and  purposes,  as  thcrein-before 
directed  with  respect  to  the  portion  or  portions  of  the  younger  son  and 
sons,  and  daughter  and  daughters  of  the  said  plaintiff,  James  Houghton 
Langston.  And  the  said  testator,  by  his  said  will,  gave  all  the  residue 
of  his  personal  estate  to  the  said  plaintiff  if  and  when  he  should  attain 
the  age  of  twenty-one  years;  but  if  he  should  die  under  that  age,  leaving 
a  child  or  children,  then  to  such  child,  or,  if  more  than  one,  to  such  chil- 
dren equally:  but  if  the  said  plaintiff  should  die  under  the  age  of  twenty- 
one  years,  and  there  should  be  no  son  or  daughter  of  his  body  living  at 
the  time  of  his  death,  then  to  the  said  testator's  said  daughters  equally. 

The  said  John  Langston,  the  testator,  departed  this  life  in  February 
1812,  leaving  the  said  plaintifl,  James  Houghton  Langston,  his  only 
son  and  heir  at-law  (then  a  minor  and  a  bachelor),  and  the  said  testator's 
said  several  daughters  him  surviving,  having  previously  made  three 
codicils  to  his  said  will,  but  none  of  them  in  any  manner  affecting  the 
above-mentioned  limitations  of  his  estate. 

The  said  plaintiff,  James  Houghton  Langston,  attained  the  age  of 
twenty-one  years  in  May  1817,  and  has  since  that  time  intermarried  and 
has  issue  by  his  wife  two  sons,  viz.  Henry  Langston,  his  eldest  son,  and 
Edward  Langston,  his  second  son. 

The  testator  had  no  son  other  than  the  said  plaintiff  at  or  after  the 
date  of  the  said  will. 

The  question  for  the  opinion  of  the  Court  was.  Whether  the  said 
Henry  Langston,  the  first  son  of  the  said  testator's  son,  the  said  James 
Houghton  Langston,  takes  any  and  what  estate  under  the  said  will  ? 

Taddy  Serjt.  The  plaintiff's  elder  son  Henry  takes  an  estate  tail, 
and  that,  either  under  the  literal  construction  of  this  will,  or  according  to 
the  intention  of  the  devisor,  manifestly  expressed  in  its  various  provisions. 
Clements  v.  Paske,  cited  in  Doe  v.  Hallett,  1  M.  &  S.  130;  Duke  v. 
Doidge,  2  Ves.  203.  n. ;  Beale  v.  Beale,  1  P.  Wms.  245. 

Wilde  Serjt.  contra.  The  plaintiff's  elder  son  takes  no  estate,  or  if 
any,  takes  it  after  the  fifth  son.  ^^^^^  ^^^    ^^^^ 

The  following  certificate  was  afterwards  given: 

We  have  heard  this  case  argued  by  counsel,  and  have  considered  the 
same,  and  are  of  opinion  that  the  said  Henry  Langston,  the  first  son  of 
the  testator's  son  the  said  James  Houghton  Langston,  takes  an  estate  in 
tail-male  under  the  said  will,  expectant  on  the  death  of  his  father  the  said 
James  Hougliton  Langston. 

W.  D.  Best. 
J.  A.  Park. 

J.  BURROUGH. 

S.  Gaselee. 
28th  November  1828. 


RAGGETT  v.  BEATY.—p.  243. 

Devise,  that  J.  B.,  a  trustee  for  devisor,  shall  grant  the  premises  to  J.  B.'s  son 
(i.  B.,  to  enter  on  after  the. death  of  J.  B.,  and  that  J.  B.  and  G.  B.  shall  within 
one  month  after  devisor's  decease  pay  100/,  to  \^^  T.  and  T.  B.  to  discharge 


5  Bingham,  243.  435 

legacies,  and  if  they  omit  to  do  so,  that  W.  T.  and  T.  B.  shall  let  the  premises 
and  raise  the  100/. 'out  of  the  rent,  they  keeping  the  deeds  of  the  premises,  and 
not  allowing  J.  B.  and  G.  B.  to  sell  or  mortgage  till  the  legacies  be  paid  and 
G.  B.  be  twentv-one  years  of  age;  and  that  if  G.  B.  die  and  leave  no  child  law- 
fully begotten  of  his  own  body,  W.  T.  and  T.  B.  shall  sell  the  premises  and 
divide  the  proceeds  among  brothers,  Sec:  Held,  an  estate  tail  in  G.  B. 

This  was  a  case  directed  by  the  Master  of  the  Rolls  for  the  opinion 
of  the  Court  of  Common  Picas  on  the  hearing  of  a  cause  instituted  by 
the  assignees  of  George  Blair,  a  bankrupt,  to  compel  the  specific  per- 
formance of  an  agreement  entered  into  by  the  defendant  for  the  pur- 
chase of  an  estate  sold  under  the  commission. 

The  property  was  devised  to  the  bankrupt  by  the  will  of  his  great- 
uncle  George  Blair  deceased,  which  was  as  follows: — 

"  I,  George  Blair,  of  Milholm,  in  the  parish  of  Stapleton,  in  the 
county  of  Cumberland,  do  make  this  my  last  will  and  testament  in  man- 
ner and  form  following:  (that  is  to  say,)  Whereas  in  and  by  declaration 
of  trust  made  between  my  nephew  John  Blair,  of  Greensburn,  and  me, 
bearing  date  the  first  day  of  March  1766,  touching  and  concerning  all  my 
messuage  and  tenement,  situate,  lying,  and  being  at  Soutcr  Moor  other- 
wise ^lilholm,  in  the  said  parish  of  Stapleton,  in  the  county  aforesaid, 
it  is,  amongst  other  things,  declared  in  trust,  that  he  the  said  J.  Blair  or 
his  heirs  do  and  shall  convey,  assign,  and  surrender  the  said  messuage 
and  tenement,  with  all  and  every  the  appurtenances,  unto  such  person 
and  persons,  and  for  such  estate,  uses,  intents,  and  purposes,  and  in  such 
parts,  manner,  and  form,  with  or  witliout  power  of  revocation  as  I,  the 
said  George  Blair,  shall  from  time  to  time,  by  any  writing  or  writings, 
or  by  my  last  will  and  testament  in  writing,  or  any  writing  purporting 
to  be  my  last  will  and  testament,  to  be  by  me  made  and  published  in  the 
presence  of  three  or  more  credible  witnesses,  direct,  limit,  or  appoint, 
give,  devise,  or  assign  the  same;  now  it  is  my  will,  and  I  do  hereby 
order,  that  he,  my  said  nephew,  John  Blair  give,  grant,  and  assign  the 
said  premises  to  his  second  son  George  Blair,  to  enter  upon  and  possess 
the  same  after  the  decease  of  his  father  the  said  J.  Blair.  And  I  do  fur- 
ther order  and  direct,  that  the  said  J.  Blair  and  George  Blair  shall  and 
will  pay  or  cause  to  be  paid,  within  one  year  next  after  my  decease, 
100/.  of  lawful  money  into  the  hand.s  of  my  trusty  and  well-beloved 
friends  William  Taylor,  of  Iletheisicle,  in  the  parish  of  Kirklintoii  and 
county  of  Cumijcrland,  yeoman,  and  Thomas  Blair,  of  Barclo.so,  in  the 
parish  of  Scalcby  and  county  aforesaid,  yeoman,  for  them  to  discharge 
and  pay  the  legacies  hereinafter  bequeathed.  But  if,  and  in  case  the 
said  John  Blair  and  George  Blair  do  not  pay  the  said  sum  of  100/. 
within  the  lime  limited,  it  is  my  will,  and  I  do  hereby  order,  that  the 
sai<l  W.  'I'aylor  and  Thomas  T'lair  do  let  the  said  messunge  and  tene- 
ment, and  receive  the  rents  arising  from  the  same  until  the  said  100/.  he 
[)aid,  they  kcfiping  possession  of  all  the  d'-cds  of  the  estate,  and  not  al- 
lowing the  said  J.  Blair  and  G.  Blair  citlu'r  to  sell  or  niortgngeany  part 
of  the  [jremises  until  the  legacies  be  all  paid,  and  G.  Blair  he  twenty- 
one  years  of  age;  or  if,  and  in  case  the  said  G.  Blair  die  anil  leave  no 
child  lawfidly  begotten  of  his  own  body,  it  is  my  will  that  the  ."'aid  W. 
Taylor  and  T.  Blair,  their  heirs  and  assi);ns,  do  sell  the  said  messuage 
and  tenement,  and  distribute  the  monry  arirfing  from  surh  sale  amongst 
his  brothers  and  sisters  and  Jonathan  l»l.iii  and  Hannah  Todd,  or  their 
heirs,  in  such  share  oi  shares  as  ihry  ihe  said  trustees  shall  Ihink 
proper." 


436  DuvEiiGiER  V.  Fellows.  M.  T.  1828. 

The  question  for  the  opinion  ol  the  Court  of  Common  Picas  was, 
Wliat  estate  and  interest,  under  this  will,  George  Blair,  the  bankrupt, 
the  iion  ot  John  Blair,  had  in  the  said  premises  upoa  the  death  of  his 
father  John  Blair? 

JVildc  Serjt,  The  bankrupt  took  an  estate-tail  under  the  will  of  the 
testator;  with  a  contingent  remainder  over  to  the  trustees  named  in  the 
will,  upon  failure  of  issue  by  G.  Blair.  Purefoy  v.  Rogers,  2  Saund. 
380;  Walter  \.  Drew,  1  Com.  372;  Goodtitle  v.  BiUington,  Dougl. 
758;  Dansey  v.  Griffith,  4  M.  &S.  61;  Forth  v.  Chapman,  1  P.  W. 
663;  Tcnny  v.  ^gar,  12  East,  253;  Duiton  v.  Engram,  Cro.  Jac. 
427;  Benny.  Slater,  5  T.  R.  335;  Goodtitle  v.  Maddern,  4  East, 
499. 

Cross  Serjt.,  contra.  George  Blair  took  an  estate  in  fee  with  an  exe- 
cutory devise  over,  in  fee,  to  William  Taylor  and  Thomas  Blair.  Col- 
lier's case,  6  Rep.  16  a.;  Wdlock  v.  Hammond,  Cro.  Eliz.  204  ; 
Hawker  v.  Buckland,  2  Vern.  105;  Doe  d.  fVilley  v.  Holmes,  8  T. 
R.  1;  Doe  d.  Palmer  and  others  v.  Richards,  3  T.  R.  356. 

Cur.  adv.  vult. 

The  following  certificate  was  afterwards  sent: — 

We  have  heard  this  case  argued  by  counsel,  and  have  considered  the 
same,  and  are  of  opinion  that  the  said  George  Blair,  the  son  of  John 
Blair,  under  the  circumstances  aforesaid,  had  an  estate-tail  in  the  said 
premises  upon  the  death  of  his  father  the  said  John  Blair. 

W.  D.  Best. 
•  J.  A.  Park. 

J.    BuRROUGH. 

28th  November  1828.  S.  Gaselee. 


DUVERGIER  v.  FELLOWS.— p.  248. 

Debt  on  bond,  conditioned  for  paying  plaintiff  10,000/.,  upon  his  forming  a  com- 
pany,  and  procuring  purchasers  for  9000  sliares  therein;  such  company  to  carry 
on  a  distillery  according  to  a  process  for  which  a  patent  had  been  granted. 

Plea,  that  the  patent  contained  a  proviso,  rendering  it  void  if  transferred  to  more 
than  five  ;  that  it  was  intended  the  said  company  sliould  consist  of  more  than 
five,  and  be  formed  for  the  purpose  of  enjoying  the  benefit  of  the  letters-pa- 
tent, of  acting  as  a  corporate  body,  and  dividing  the  benefit  of  the  patent  into 
10,000  shares,  transferrable  and  assignable  without  charter  from  the  king  ;  and 
that  it  was  corruptly  and  illegally  agreed  between  the  parties,  that  the  plain- 
tiff should  form  the  company  for  such  puiposcs,  and  should  sell  the  9000  shares 
in  order  to  raise  a  larger  sum  of  money,  under  pretence  of  carrying  on  the 
privilege  granted  by  the  patent : 

Held,  a  bar  to  the  action. 

Debt  on  the  joint  and  several  bond  of  the  defendant,  Jean  Jacques 
Saint  JNIare  and  others,  the  condition  of  which,  as  set  out  on  oyer,  ap- 
peared to  be  as  follows: — "  Whereas  the  said  Jean  Jacques  Saint  Mare, 
some  time  since,  obtained  three  several  letters-patent  for  the  distillation 
of  potatoes  ;  and  whereas  the  said  Jean  Jacques  Saint  Mare,  Stamp 
Brooksbank,  and  William  Dorset  Fellows  are  now  engaged  in  co-part- 
nership together  in  carrying  on  a  certain  distillery  to  a  very  large  ex- 
tent at  Vauxhall,  called  the  Belmont  Distillery,  according  to  the  system 
and  method  of  distilling,  for  the  use  and  exercise  of  which  the  said 
several  letters-patent  were  granted  to  the  said  Jean  Jacques  Saint  Mare, 


5  Bingham,  248.  437 

aud  which  said  distillery  has  been  erected,  set  up,  and  established  on 
certain  leasehold  premises  belonging  to  them  the  said  Jean  Jacques 
Saint  Mare,  Stamp  Brooksbank,  and  William  Dorset  Fellows;  and 
whereas  the  said  Jean  Jacques  Saint  Mare,  Stamp  Brooksbank,  and  Wil- 
liam Dorset  Fellows  have  it  in  contemplation  to  dispose  of  their  shares 
and  interest  of,  in,  and  to  the  said  several  patents,  and  of,  in,  and  to  the  dis- 
tillery, premises,  plant,  and  stock  in  trade  in  and  upon  the  same,  and 
to  part  with  the  same  to  a  company  to  be  formed  for  that  purpose;  and 
whereas  the  said  Jean  Jacques  Saint  Mare,  Stamp  Brooksbank,  and 
William  Dorset  Fellows  have  applied  to  and  requested  Aime  Duver- 
gier  to  exert  his  influence  amonst  his  numerous  connexions  and  friends, 
so  as  to  form  such  company,  intended  to  be  called  ''The  Patent  Dis- 
tillery Company,"  who  shall  appoint  directors  and  trustees  for  the  con- 
duct and  management  of  the  said  concern,  which  directors  shall  issue, 
under  their  hands  and  seals,  10,000  shares  of  the  value  of  50/.  each 
share;  and  whereas  the  said  Aime  Duvergier,  in  consequence  of  his  con- 
nexion with  different  merchants,  brokers,  traders,  and  others  in  the  city 
of  London,  hath  consented  and  agreed  to  form  the  said  company,  to  be 
called  "The  Patent  Distillery  Company,"  among  his  own  immediate 
connexions  and  friends,  and  to  bring  such  persons  together  for  the  pur- 
pose of  appointing  directors  and  trustees  for  the  government  and  ma- 
nagement of  such  distillery  concern,  and  to  procure  purchasers  for  9000 
shares,  of  the  value  of  50/.  each  share;  and  whereas  the  said  Jean 
Jacques  Saint  Mare,  Stamp  Brooksbank,  and  William  Dorset  Fellows, 
in  order  to  induce  the  said  Aime  Duvergier  to  take  the  trouble  of  form- 
ing such  company,  and  to  use  his  influence  amongst  his  connexion  and 
friends,  and  to  indemnify  him  from  the  charges  and  expenses  that  he 
may  be  put  to  in  and  about  the  same,  have  proposed  and  agreed,  as  soon 
as  he  or  his  executors  or  administrators  shall  have  effected  such  object, 
and  procured  purchasers  for  9000  of  such  50/.  shares,  and  obtained  for 
such  company  the  first  call  upon  such  shares  of  5/.  each,  that  they  the 
said  Jean  Jacques  Saint  Mare,  Stamp  Brooksbank,  and  William  Dorset 
Fellows,  their  heirs,  executors,  or  administrators,  or  some  or  one  of 
them,  shall  and  will  pay  to  the  said  Aime  Duvergier,  his  executors,  ad- 
ministrators, or  assigns,  the  full  sum  of  10,000/.  iitcrling,  by  three  equal 
payments  or  instalments  of  3333/.  Gs.  Sd.,  viz.  the  sum  of  3333/.  6s.  8d. 
BO  soon  as  the  first  instalment  on  such  9000  shares  shall  have  been  paid, 
the  sum  of  3333/.  6.9.  8d.  so  soon  as  the  second  instalment  on  the  same 
shares  shall  have  been  paid,  and  the  remaining  sum  of  3333/.  Gs.  Sd.  so 
soon  as  the  third  instalment  of  the  same  shares  shall  have  been  paid; 
now,  therefore,  the  condition  of  the  above-written  bond  or  obligation  is 
buch,  that  if  the  above-bounden  Jean  Jac(|Uos  Saint  Marc,  Stamp  Brooks- 
bank, and  William  Dursct  h'cllows,  their  executors  or  adniiniHtrators,  or 
any  or  cither  of  them,  do  and  shall  well  and  truly  pay  or  cause  to  be 
paid  unto  the  above-named  Aime  Duvergier,  his  executors,  administra- 
tors, or  assigns,  the  full  sum  of  10,000/.  of  lawful  money  of  (Ireat  Britain, 
in  manner  following,  that  is  to  say,  the  sum  of  3333/.  0,9.  8^/.,  part 
thereof,  on  the  said  Aime  Duvergier,  his  executors  or  administrators, 
forming  the  said  before-mentioned  company,  and  procuring  purchasers 
for  such  9000  shares,  and  payment  of  the  first  instalment  or  call  thereon; 
the  further  sum  of  3333/,  fi.v.  Hd.  on  the  .scrond  insl.dnnMit  on  such  shares 
having  been  paid;  and  llir  remaining  sum  of  33.^3/.  G.v.  Sr/.  on  the  third 
instalment  on  the  same  shares  having  been  paid;  then  the  abovc-\vrit« 


438  DuvEUGiEU  V.  Fellows.  M.  T.  1828. 

ten  obligation  to  be  void  ami  of  no  cflbct,  or  else  to  be  and  remain  in 
lull  force  and  virtue. 

The  defendant,  after  sundry  pleas,  on  which  issue  in  fact  was  taken, 
pleaded,  fil'thly,  actio  non,  IJecause  certain  of  the  said  several  letters 
jKitent  in  the  said  condition  of  the  said  supposed  writing  obligatory 
mentioned,  were  letters  patent  of  our  sovereign  lord  the  King,  undei- 
the  great  seal  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
bearing  date  at  Westminster  on  a  certain  day,  to  wit,  on  the  twentieth 
day  of  March,  in  the  fifth  year  of  the  reign  of  our  lord  the  King,  where- 
by, after  reciting,  amongst  otiier  things,  that  the  said  Jean  Jacques  Saint 
Mare  had,  by  his  petition,  humbly  represented  unto  our  said  lord  the 
King,  that  he  was  in  possession  of  an  invention  of  improvements  in 
the  process  of  an  apparatus  for  distilling,  our  said  lord  the  King  gave 
and  granted  unto  the  said  Jean  Jacques  Saint  Mare,  his  executors,  ad- 
ministrators, and  assigns,  his  especial  license,  full  power,  sole  privilege 
and  authority,  that  he  the  said  Jean  Jacques  Saint  Mare,  his  executors, 
administrators,  and  assigns,  and  every  of  them,  by  himself  and  them- 
selves, or  by  his  and  their  deputy  or  deputies,  servants  or  agents,  or 
such  others  as  he  the  said  Jean  Jacques  Saint  Mare,  his  executors,  ad- 
ministrators, or  assigns,  should  at  any  time  agree  with,  and  no  other, 
from  time  to  time,  and  at  all  times  thereafter,  during  the  term  of  years 
therein  expressed,  should,  and  lawfully  might,  make,  use,  exercise,  and 
vend  the  said  invention  within  that  part  of  the  United  Kingdom  of 
Great  Britain  and  Ireland  called  England,  our  said  lord  the  King's  do- 
minion of  Wales,  and  town  of  Berwick-upon-Tweed,  in  such  manner 
as  to  him  the  said  Jean  Jacques  Saint  Mare,  his  executors,  administra- 
tors, and  assigns,  or  any  of  them,  should  in  his  or  their  discretion  seem 
meet,  and  that  he  the  said  Jean  Jacques  Saint  Mare,  his  executors,  ad- 
ministrators, and  assigns,  should,  and  lawfully  might,  have  and  enjoy 
the  whole  profit,  benefit,  commodity,  and  advantage  from  time  to  time 
coming,  growing,  accruing,  and  arising  by  reason  of  the  said  invention, 
for  and  during  the  term  of  years  therein  mentioned;  to  have,  hold,  ex- 
ercise, and  enjoy  the  said  license,  powers,  privileges,  and  advantages 
therein-before  granted  or  mentioned  to  be  granted  unto  the  said  Jean 
Jacques  Saint  Mare,  for  and  during  and  unto  the  full  end  and  term  of 
fourteen  years  from  the  date  of  the  said  last  mentioned  letters  patent 
next  and  immediately  ensuing,  and  fully  to  be  complete  and  ended  ac- 
cording to  the  statute  in  such  case  made  and  provided:  and  it  was  by 
the  said  letters  patent  provided,  and  the  same  were  declared  to  be  upon 
the  express  condition  that  if  the  said  Jean  Jacques  Saint  Mare,  his  ex- 
ecutors or  administrators,  or  any  person  or  persons  who  should  or  might, 
at  any  time  or  times  thereafter  during  the  continuance  of  that  grant, 
have  or  claim  any  right,  title,  or  interest  in  law  or  equity  of,  in,  or  to 
the  power,  privilege,  and  authority  of  the  sole  use  and  benefit  of  the 
said  invention  thereby  granted,  should  make  any  transfer  or  assignment, 
or  any  pretended  transfer  or  assignment  of  the  said  liberty  and  privilege, 
or  any  share  or  shares  of  the  benefit  or  profit  thereof,  or  should  declare 
any  trust  thereof  to  or  for  any  number  of  persons  exceeding  the  num- 
ber of  five,  or  should  open,  or  cause  to  be  opened,  any  book  or  books 
for  public  sul)sci  iption  to  he  made  by  any  number  of  persons  exceeding 
the  number  of  five,  in  order  to  the  raising  any  sum  or  sums  of  money 
under  pretence  of  carrying  on  the  said  liberty  or  privilege  thereby 
granted,  or  should  by  him  or  ihcmselycS;  or  his  or  their  agents  or  ser- 


J 


5  Bingham,  248.  439 

vants,  receive  any  sum  or  sums  of  money  wliatsoever,  of  any  number 
of  persons  exceeding  in  the  whole  the  number  of  five,  for  sucli  or  the 
like  intents  and  purposes,  or  should  presume  to  act  as  a  corporate  body, 
or  should  divide  the  benefit  of  the  said  last-mentioned  letters  patent  or 
the  liberties  and  privileges  thereby  granted,  unto  any  number  of  shares 
exceeding  the  number  of  five,  or  should  commit  or  do,  or  procure  to  be 
committed  or  done  any  act,  matter,  or  thing  whatsoever,  during  such 
time  as  such  person  or  persons  should  have  any  right  or  title,  either  in 
law  or  equity,  in  or  to  the  same  premises,  which  would  be  contrary  to 
the*  true  intent  and  meaning  of  a  certain  act  of  parliament  made  in  the 
sixth  year  of  the  reign  of  the  late  King  George  the  First,  intituled 
"An  act  for  better  securing  certain  powers  and  privileges  intended  to 
be  granted  by  his  Majesty  by  two  charters  for  assurance  of  ships  and 
merchandizes  at  sea,  and  for  lending  money  upon  bottomry,  and  for  re- 
straining several  extravagant  and  unwarrantable  practices  therein  men- 
tioned," or  in  case  the  said  power,  privilege,  or  authority  should  at  any 
time  thereafter  become  vested  in,  or  in  trust  for  more  than  the  number 
of  five  persons  or  their  representatives  at  a'ny  one  time,  reckoning  exe- 
cutors or  administrators  as  and  for  the  single  person  whom  they  repre- 
sent as  to  such  interest  as  they  were  or  should  be  entitled  to  in  right  of 
such  their  testator  or  intestate,  that  then  and  in  any  of  the  said  cases 
those  letters  patent,  and  all  liberties  and  advantages  whatsoever  thereby 
granted,  should  utterly  cease  and  become  void,  any  thing  therein  be- 
fore contained  to  the  contrary  thereof  in  anywise  notwithstanding;  as 
by  the  said  letters  patent,  whicli  said  letters  patent  the  defendant  brought 
into  Court,  might  more  fully  appear:  and  the  said  defendant  further  said, 
that  others  of  the  said  letters  patent,  in  the  said  condition  of  the  said 
writing  obligatory  mentioned,  were  and  are  certain  letters  patent  of  our 
said  lord  the  King,  under  the  seal  of  our  said  lord  the  King  appointed 
by  the  treaty  of  union  to  be  used  instead  of  the  grand  seal  of  Scotland, 
bearing  date  on  a  certain  day,  to  wit,  the  2Gth  day  of  February,  in  the 
5th  year  aforesaid;  by  which  last-mentioned  letters  patent  our  said  lord 
the  King  gave  and  granted  to  the  said  Jean  Jacques  Saint  Mare,  his  ex- 
ecutors, administrators,  and  assigns,  by  themselves  or  such  other  person 
as  he  or  they  might  appoint  or  agree  with,  and  no  others,  from  time 
to  time  and  at  all  times  thereafter,  during  the  term  of  years  in  the  said 
last-mentioned  letters  patent  expressed,  that  they  might  lawfully  make, 
use,  exercise,  and  vend  an  invention  therein  mentioned,  of  improve- 
ments in  the  process  of,  and  apparatus  for,  distilling,  within  that  part  of 
the  United  Kingdom  of  Great  JJritnin  and  Ireland  called  Scotland,  in 
such  manner  as  to  the  said  Jean  Jacrpics  Soint  Mare,  his  executors, 
admmistrators,  and  assigns,  or  any  of  them,  should  in  his  discretion 
seem  meet  : 

Then  followed  the  extent  and  conditions  of  the  Scotch  patent,  which 
were  the  same  as  in  the  patent  for  England. 

And  the  said  defendant  further  said,  that  the  said  several  terms  of 
fourteen  years  each  in  the  said  letters  patent  mentioned,  at  thn  time  of 
the  making  of  the  said  .supposed  writing  ol)ligatory,  wore,  ami  yet  are, 
unexpired,  and  that  the  said  company,  in  the  said  condition  of  the  said 
supposed  writing  obligatory  mentioned,  was  meant  aiul  intended  by  the 
said  Jean  Jacques  Saint  Mare,  the  said  plaintifl",  and  defendant,  at  the 
time  of  making  of  the  said  supposed  writing  obligatory,  to  consist  of 
more  than  five  persons,  to  wit,  10,000  persons,  and  to  be  formed  for  the 


440  r  DuvERGiER  V.  Fellows.  M.  T.  1828. 

purposes,  amongst  other  things,  of  using,  exercising,  and  enjoying  the 
said  exclusive  liberties  and  privileges  in  the  said  two  several  letters 
patent  in  the  said  condition,  and  in  this  plea  mentioned,  for  the  use  and 
benefit  of  the  said  persons  so  exceeding  the  number  of  five,  in  that  part 
of  the  said  United  Kingdom  called  England,  and  in  that  part  thereof 
called  Scotland  respectively,  under  colour  of  the  said  letters  patent  re- 
spectively, to  wit,  at,  &.C.  and  so  the  defendant  said,  that  the  said  suppos- 
ed writing  obligatory  was  and  is  void  in  law,  and  this  the  said  defendant 
was  ready  to  verify;  wherefore,  &c. 

The  defendant  pleaded,  sixthly,  actio  non,  because  certain  of  the  Said 
several  letters  patent  in  the  said  condition  of  the  said  supposed  writing 
obligatory  mentioned  were  letters  patent  of  our  sovereign  lord  the  now 
King,  under  the  great  seal  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  bearing  date  at  Westminster,  on  a  certain  day,  to  wit,  the  20th 
day  of  March,  in  the  fifth  year  of  the  reign  of  our  sovereign  lord  the 
King,  containing  the  like  matters  and  things,  and  the  like  proviso  and  to 
the  same  effect  as  the  said  letters  patent  in  the  said  fifth  plea  first  men- 
tioned, as  by  the  said  letters  patent  which  the  said  defendant  produced 
to  the  court  might  more  fully  appear;  and  the  defendant  further  said, 
that  the  said  term  of  fourteen  years  in  the  said  last  mentioned  letters  pa- 
tent mentioned,  at  the  time  of  the  making  of  the  said  supposed  writing 
obligatory,  was,  and  yet  is,  unexpired,  and  that  the  said  company  in  the 
said  condition  of  the  said  supposed  writing  ^obligatory  mentioned  was 
at  the  time  of  the  making  thereof  intended  by  the  said  plaintiff  and  de- 
fendant to  consist  of  more  than  five  persons,  to  wit,  10,000  persons,  and 
to  be  formed  for  the  purpose,  amongst  other  things,  of  using,  exercising, 
and  enjoying  the  said  exclusive  liberties  and  privileges  in  the  said  last 
mentioned  letters  patent  mentioned,  for  the  use  and  benefit  of  the  said 
persons  so  exceeding  the  number  of  five,  in  that  part  of  the  United 
Kingdom  called  England,  under  colour  of  the  said  last  mentioned  letters 
patent:  by  means  of  which  premises  in  this  plea  mentioned  the  said  sup- 
posed writing  obligatory  was  and  is  wholly  void,  and  this  the  said  de- 
fendant was  ready  to  verify,  wherefore,  &c. 

The  defendant  pleaded,  seventhly,  and  lastly,  that  certain  of  the  said 
letters  patent  in  the  said  condition  of  the  said  supposed  writing  obligato- 
ry mentioned  were  letters  patent  of  our  sovereign  lord  the  now  King, 
under  the  great  seal  of  the  United  Kingdom  of  Great  Britain  and  Ire- 
land, bearing  date  at  Westminster,  on  a  certain  day,  to  wit,  the  20th 
day  of  March,  in  the  fifth  year  of  the  reign  of  our  said  lord  the  King, 
containing  therein  the  like  matters  and  things,  and  the  like  proviso,  and 
to  the  same  effect,  as  the  said  letters  patent  in  the  said  fifth  plea  first 
mentioned,  as  by  the  said  last  mentioned  letters  patent,  which  the  said 
defendant  produced  to  the  court,  might  more  fully  appear;  and  the  de- 
fendant further  said,  that  the  said  term  of  fourteen  years  in  the  said  last 
mentioned  letters  patent  mentioned  at  the  time  of  the  making  of  the  said 
supposed  writing  obligatory,  was,  and  yet  is,  unexpired,  and  that  the 
said  company  in  the  said  condition  of  the  said  supposed  writing  obligato- 
ry mentioned  was  by  the  said  Jean  Jacques  Saint  Mare,  the  said  Stamp 
Brooksbank,  the  said  defendant,  and  the  said  plaintiff  intended  at  the 
time  of  the  making  the  said  supposed  writing  obligatory  to  consist  of 
more  than  five  persons,  and  to  be  formed  for  the  purpose,  amongst  other 
things,  of  using,  exercising,  and  enjoying  the  said  exclusive  liberties  and 
privileges   in  the  said  last  mentioned  letters  patent  mentioned,  for  the 


5  Bingham,  248.  441 

use  and  benefit  of  the  said  persons  so  exceeding  llie  number  of  five,  in 
that  part  of  the  United  Kingdom  called  England,  under  colour  of  the 
said  letters  patent,  and  of  the  acting  as  a  corporate  bod}^,  and  dividing 
the  benefit  of  the  said  last  mentioned  letters  patent,  and  the  liberties  and 
privileges  thereby  granted,  into  divers  shares,  exceeding  the  number  of 
five,  to  wit,  10,000  shares,  to  be  transferable  and  assignable,  without 
any  charter  from  our  lord  the  King,  and  that,  before  the  time  of  the 
making  of  the  said  supposed  writing  obligatory,  to  wit,  on,  &c.,at,  &c., 
it  was  corruptly  and  illegally  agreed,  by  and  between  the  said  plaintiff 
and  the  said  Jean  Jacques  Saint  ISIare,  the  said  Stamp  Brooksbank  and 
the  said  defendant,  that  the  said  plaintiff  should  form  such  company,  as  in 
this  plea  mentioned,  for  the  purpose  in  this  plea  mentioned,  and  should 
sell  and  dispose  of  divers,  to  wit,  9000  of  such  shares  as  in  this  plea  men- 
tioned, being  the  shares  in  the  said  condition  of  the  said  supposed  writ- 
ing obligatory  mentioned,  and  should  cause  divers  large  sums  of  money 
to  be  subscribed  by  public  subscription  by  numbers  of  persons  exceeding 
five,  to  wit,  9000  persons,  in  order  to  the  raising  a  large  sum  of  money, 
to  wit,  450,000/.,  under  pretence  of  carrying  on  the  said  liberty  or  pri- 
vilege (amongst  other  things)  by  the  said  last  mentioned  letters  patent 
granted;  such  money  to  be  in  part  received  by  the  said  Jean  Jacques 
Saint  Mare,  Stamp  Brooksbank,  and  the  said  defendant,  for  the  purpose 
of  carrying  on  the  said  liberty  and  privilege  for  the  benefit  of  the  said 
last  mentioned  persons,  so  exceeding  five;  and  that  the  said  Jean 
Jacques  Saint  Mare,  the  said  Stamp  Brooksbank,  and  the  said  defendant, 
should,  in  consideration  thereof,  pay  to  the  said  plaintiff  the  sum  of 
10,000/.  of  lawful  money  of  Great  Britain,  in  the  manner  in  the  said 
condition  of  the  said  supposed  writing  obligatory  mentioned;  and  that 
for  securing  the  payment  of  the  sum  of  10,000/.  the  said  defendant 
should  make  and  seal,  and  as  his  act  and  deed  deliver  to  the  said  plain- 
tiff a  writing  obligatory,  in  the  penal  sum  of  10,200/.,  conditioned  for 
the  payment  of  the  said  sum  of  10,000/.  in  manner  aforesaid:  and  the 
defendant  further  said,  that  in  pursuance  of  the  said  corrupt  and  unlaw- 
ful agreement,  tlie  said  defendant  afterwards,  to  wit,  on,  &c.,  at,  &.c., 
madtf^nd  sealed,  and  as  his  act  and  deed  delivered  the  said  supposed 
writing  obligatory  in  the  said  declaration  mentioned,  and  the  said  plain- 
tiff then  and  there  accepted  and  received  the  same  of  and  from  tlie  said 
defendant,  upon  the  said  corrupt  and  unlawful  agreement:  by  means  of 
which  premises  in  this  plea  mentioned  the  said  supposed  writing  ol)Iiga- 
tory  was  and  is  wholly  void,  and  this  tlic  s.iid  dclbndant  was  ready  to 
verify,  wherefore,  &.c. 

Demurrer  inde,  and  joinder. 

IVildc  Scrjt.  in  support  of  the  demurrer.  The  substance  of  the 
seventh  plea  (which  comprehends  also  the  matters  contained  in  the  fifth 
and  sixth)  is,  that  it  was  intended  by  the  parties  to  do  certain  acts,  and, 
among  them,  to  form  a  company  which  should  act  as  a  corporate  body, 
and  should  transfer  and  assign  sliarcs  without  charter  from  the  crown. 

But  a  mere  allegation  of  intention  is  not  sufficient  to  show  that  the 
bond  was  void,  for  the  intention  to  commit  an  illegal  act  is  not  neces- 
sarily followed  by  commission.  If  such  an  allegation  be  sufficient,* 
every  existing  corporation  is  open  to  the  same  objection,  for  there  is 
none  of  which  it  may  not  be  predicated  that  before  becoming  a  corpora- 
tion it  intended  to  become  a  corporation.  The  intenlioji,  however, 
might  be  perfectly  legal,  for  the  parties  might  Intend  to  become  a  cor- 

VOL.   XV.  V) 


442  DuM-.KbiKK  V.  Fellows.  M.  T.  1828. 

poralion  by  procuring  an  act  of  jiarliament  for  the  purpose:  a  mode  of 
becoming  so,  which  is  recognized  in  6  G.  2.  c.  18.;  and  when  the  de- 
fendant might  liave  obtained  such  an  act  himself,  it  is  not  for  him  to  ob- 
ject that  the  plaintiff  did  not  obtain  it:  therefore  in  Haines  v.  Busk,  5 
Taunt.  521,  where,  in  an  action  for  brokerage,  the  defence  was,  that  the 
voyage  undertaken  was  illegal  for  want  of  a  licence,  the  Court  held,  that 
as  the  defendant  ought  to  have  procured  the  licence,  he  should  not  take 
advantage  of  the  want  of  it.  Nor  is  it  sufficiently  shewn  that  the  acts 
intended  were  illegal.  The  defendant  should  have  specified  what  the 
acts  were,  in  order  that  the  Court  might  Judge  whether' they  were  acts 
peculiar  to  a  corporate  body  or  not.  The  defendant  might  have  been  in 
error  in  supposing  that  certain  acts  which  he  had  in  view  were  exclu- 
sively acts  of  a  corporate  body. 

Acting  as  a  corporate  body,  for  instance,  in  private  matters,  would 
not  render  the  parties  liable  to  a  quo  warranto;  as,  in  the  matter  of  a 
ivarren;  Rex  v.  Cann,  Andr.  15.  At  all  events,  by  making  the  alle- 
gation in  this  general  way,  the  defendant  offers  .matters  of  law  to  be 
tried  by  a  jury.  He  ought  to  have  afforded  the  plaintiff  an  opportunity 
of  taking  issue  on  the  acts  impugned,  and  on  the  means  by  which  it 
might  be  proposed  to  justify  them.  The  only  act  specified  is,  that  it 
ivas  intended  the  proposed  company  should  transfer  and  assign  shares 
■without  charter  from  the  King.  But  there  is  nothing  illegal  in  that. 
It  might  have  been  intended  to  transfer  them  under  an  act  of  parliament 
to  be  procured  for  the  purpose;  and  even  without  that,  the  mere  trans- 
fer would  not  be  in  itself  illegal,  but  only  a  symptom  that  the  body  trans- 
ferring was  an  illegal  combination:  Rex  v.  TVebb  and  others,  14  East, 
406.  The  transfer  would' be  legal,  if  the  assignee  took  it  subject  to  the 
original  covenants:  Prat  I  v-  HutchinsoJi,  15  East,  511.  A  share  in  a 
partnership  may  be  sold  under  an  execution,  and  the  assignees  of  a 
bankrupt  may  carry  on  his  trade.  At  all  events  a  partner  may  assign 
the  whole  of  his  interest,  although  it  may  depend  on  the  terms  of  the 
partnership  whether  the  assignee  shall  carry  on  business  with  the  others 
or  not. 

In  Josephs  v.  Pebrer,  3  B.  &:  C.  639,  where  a  contract  for  sharts  in 
a  joint  stock  company  was  held  void,  the  company  was  formed;  and  the 
case  was  argued  on  the  provisions  of  6  G.  1.  c.  18.,  which  has  since 
been  repealed. 

Taddy  Serjt.  contra.  The  demurrer  admits  that  it  was  intended  the 
company  should  act  as  a  corporate  body,  and  should  transfer  shares 
without  a  charter  from  the  crown;  and  that  it  was  corruptly  and  illegally 
agreed  between  the  plaintiff  and  the  defendant  that  the  plaintiff  should 
form  the  company  for  those  purposes.  With  such  an  admission,  it 
would  have  been  superfluous  to  have  specified  what  particular  acts  of  a 
corporate  body  the  company  was  to  perform;  for  if  it  was  corruptly 
and  illegally  agreed,  it  could  not  have  been  intended  that  the  company 
should  act  legally  as  a  corporation. 

But  the  allegation  that  it  was  intended  the  company  should  act  as  a 
corporate  body  is  sufficiently  explicit,  without  specifying  particular  acts. 
The  Courts  take  judicial  notice  of  the  functions  and  privileges  of  cor- 
porate bodies  as  enumerated  in  Com.  Dig.  Franch.  F.  1.  9  Rep.  25  b. 
10  Rep.  33  b. 

Connecting  the  seventh  plea  with  the  condition  in  the  bond  and  the 
patent,  it  is  clear  the  transaction  was  illegal,  even  at  common  law. 


5  BiXGHAM,  248.  443 

The  patent  is  declared  on  the  face  of  it  to  be  void,  if,  by  any  contri- 
vance, assigned  for  the  benefit  of  more  than  five  persons:  by  the  condi- 
tion of  the  bond  the  plaintiff  was  to  procure  purchasers  for  10,000  shares 
in  the  projected  company,  who  were  to  conduct  the  process  described  in, 
the  patent:  by  that  one  act  the  patent  would  have  become  void,  and  the 
purchasers  would  have  paid  their  money  for  nothing:  upon  the  face  of 
the  plea  the  agreement  appears  to  have  been  a  manifest  fraud  on  the 
public,  and  the  agreement  is  therefore  void,  as  being  inconvenient  and 
contrary  to  public  policy,  as  the  patent  would  also  be,  if  attended  with 
ill  effects:  3  Inst.  1S4.  But  the  extensive  transfer  of  shares  is  of  itself 
inconvenient  and  illegal.  A  chose  in  action  cannot  be  transferred. 
That  rule  was  originally  established  to  prevent  maintenance;  Co.  Lit. 
214  a.  266  a.;  and  though  maintenance  be  less  dreaded  in  modern  times, 
suitors  who  have  to  contend  against  the  joint  stock  purse  of  an  opulent 
company  are  exposed  to  the  effects  of  disparity  of  means  not  experienced 
in  contests  between  individuals. 

Notwithstanding  the  Stat.  6  G.  1.  c.  IS.  has  been  repealed,  an  agreement 
such  as  that  described  in  this  plea  is  illegal  at  common  law,  as  tending 
to  the  prejudice  and  grievance  of  the  King's  subjects.  "  The  necessary 
effect  of  such  a  practice  (the  transfer  of  shares)  is  to  introduce  gaming 
and  rash  speculation  to  a  ruinous  extent:  in  such  transactions  one  cannot 
gain  unless  another  loses;  whereas  in  fair  mercantile  transactions  each 
party,  in  the  ordinary  course  of  things,  reaps  a  profit  in  his  turn.  la 
this  case  the  association  appears  to  be  one  of  which  the  effect  cannot  but 
be  mischievous."  l^erJlbbott,  C.J.  in  Josephs  v.  Pebrer.  In  Kinder 
V.  Taylor  (a)  hor d  Eldon  threw  some  doubt  upon  Bex  v.  Webb;  that 
case,  he  said,  '<  was  scanty  in  argument,  and  the  common  law  was  not 
considered  in  it,  because  it  was  an  indictment  upon  the  statute.  He 
spoke  with  all  respect  of  Lord  Ellenborough,  who  had  decided  the  case, 
and  whose  memory  he  venerated  as  a  lawyer;  but  he  should  have  been 
glad  if  his  Lordship  had  taken  the  trouble  to  state  what  was  assuming  to 
act  as  a  corporation.  For  many  considerations,  it  would  have  been  very 
fortunate,  if  the  Court  had  then  looked  at  this  as  a  distinct  question,  and 
had  been  good  enougli  to  declare,  'this  is  not  acting  as  a  corporation, 
because  to  act  as  a  corporation  you  must  act  so  and  so.'  It  now,  how- 
ever, became  necessary  to  declare,  cither  by  legal  judgment  or  by  a 
declaratory  act  of  parliament,  what  was  the  meaning  of  presuming  to  act 
as  a  corporation;  and  by  whomsoever  it  was  declared,  not  only  what 
was  doing,  but  what  had  been  done,  must  be  attentively  regarded.  It 
was  for  this  reason,  he  thought,  that  the  King  v.  IVebb  called  for  further 
explanation."  '<  His  opinion  might  bo  of  use  lo  nobody,  but  it  was  as 
well  that  the  worhl  should  know  it:"  "'I'hat  opinion  was,  and  he  had 
taken  some  trouble  to  consider  the  question,  that  if  it  could  satisfactorily 
be  made  out  to  a  jury  that  a  party  was  oj)cning  books,  raising  a  premium, 
upon  the  shares,  and  then  took  care  to  get  himself  out  of  the  scrape, 
that  was  an  indictable  offence."  Such  a  company  is  illegal,  even  when 
formed  for  useftd  purposes;  as,  for  carrying  on  a  private  brewery;  Buck 
v.  Buck,  1  Camp.  547.  And  it  cannot  be  argued  that  the  plaintiff  was 
ignorant  of  the  |)roviso  limiting  the  assignment  of  the  patent  to  five,  for 
the  patent  is  referred  to  in  the  condition  of  the  bond  on  which  he  sues. 

(«)  (leor^^c  nil  Jdint  Stork  Coiiipaiiics.  p.  -Ki.  (rnllfd  there,  ]).  A\,  the  ra^c  of 
tlu-  Kcal  Del  Moiitc  Mitiiiu^  Conipaiiy).     Sweet,  CliaiHTi-y  Laiic,  1825. 


Ill  l)uvF,iu;iEu  V.  Fellows.  M.  T.  1828. 

ll  tlie  transaction  between  him  and  the  defendant  had  gone  but  a  little 
lurther,  it  had  been  an  indictable  ofl'cnce:  Kex  v.  Stratton  and  Others, 
1  Camp.  549. 

IVilde.  The  clear  intention  of  the  parties  was  to  find  purchasers  for 
the  premises  where  the  distillery  was  carried  on,  and  for  the  business. 
The  transfer  of  the  patent  was  not  the  object  of  the  transaction,  but  the 
transfer  of  the  business,  which  could  not  be  transferred  without  com- 
municating a  knowledge  of  the  process  by  wliicli  it  was  carried  on;  and 
it  was  necessary  that  the  assignees  should  by  some  means  be  pi'otected 
against  any  charge  of  infringing  the  patent-right  of  the  assignor.  There 
is  nothing  illegal  in  transferring  shares  in  a  business,  subject  to  the  original 
liabilities,  and  there  was  nothing  in  this  business  prejudicial  to  the  pub- 
lic interests.  But  the  transfer  of  shares,  and  the  raising  a  capital  by 
subscriptions,  are  in  effect  the  only  objections  made  by  this  plea  against 
the  intended  company;  and  with  regard  to  the  latter,  even  under  6  G.  1. 
c.  IS.,  Lord  Elknhorough  says,  in  Rex  v.  IVchb  and  Others,  '' Wc 
think  it  impossible  to  say  that  it  makes  a  substantive  offence  to  raise  a 
large  capital  by  small  subscriptions,  without  any  regard  to  the  nature 
and  quality  of  the  objects  for  which  the  capital  is  raised." 

It  nowhere  appears  in  the  pleadings  that  the  plaintiff  was  aware  of 
the  proviso  which  rendered  the  patent  void  upon  transfer  to  more  than 
five,  and  there  is  no  law  which  requires  that  such  a  proviso  shall  be  in- 
serted in  a  patent.  ^  ,  ,. 
^                                                                        Cur.  adv.  vult. 

Best  C.  J.  now  delivered  the  judgment  of  the  Court;  and  after  read- 
ing the  pleadings,  and  particularly  adverting  to  the  condition  of  the 
bond,  and  the  terms  of  the  patent,  as  set  forth  ante,  p.  438,  proceeded 
as  follows: — 

It  appears  from  the  condition  of  the  bond  that  the  plaintiff  was  not 
entitled  to  any  part  of  the  10,000/.,  which  the  obligors  had  bound  them- 
selves to  pay  him,  until  he  had  formed  a  company,  and  procured  pur- 
chasers for  9000  shares,  and  payment  of  the  first  instalments  or  calls  on 
those  shares.  The  forming  the  company,  the  selling  9000  shares  of  what 
was  to  be  called  the  stock  of  such  company,  and  the  prevailing  on  the  pur- 
chasers to  pay  one  third  of  their  subscriptions,  or  150,000/.,  is  a  condi- 
tion precedent  to  the  plaintiff's  right  of  action. 

The  proviso  contained  in  the  patent  shews  that  the  plaintiff  cannot 
perform  this  condition  without  committing  a  fraud  on  a  vast  number  of 
persons,  and  that  if  he  could  obtain  any  subscriptions,  the  subscribers 
would  be  entitled  to  recover  back  the  money  paid  on  them,  as  being  ob- 
tained by  fraud,  or  as  money  paid  without  consideration.  The  moment 
the  company  was  formed,  and  the  patents  were  transferred  to  them,  they 
would  cease  to  exist  as  legal  patents,  for  they  would  be  destroyed  by 
any  assignment  to  more  than  five  persons,  or  to  any  persons  in  trust  for 
more  than  five  persons.  The  condition  of  the  bond  shews,  that  the  pat- 
ents were  to  be  assigned  to  a  company  to  be  formed  by  subscription, 
and  the  shares  in  which  were  to  be  transferable.  Any  one  of  these  cir- 
cumstances would  render  the  patents  void.  This  difficulty  was  felt  by 
the  counsel  for  the  plaintiff,  and  he  attempted  to  extricate  his  client  from 
it  by  insisting  that  it  was  not  intended  to  convey  the  exclusive  right  of 
distilling  spirits  from  potatoes,  secured  by  the  patent,  but  only  to  free 
the  intended  company  from  being  liable  to  the  patentee  for  using  his  in- 
vention.    But  it  is  clear  from  the  terms  of  the  bond  that  the  object  of 


5  Bingham, 248.  445 

tlie  parties  was  not  to  destroy  the  patents,  but  that  they  professed  to 
assign  the  privilege  granted  by  them  to  the  company  which  the  plaintiff 
was  to  form. 

The  words  of  the  condition  of  the  bond  are,  "have  it  in  contempla- 
tion to  dispose  of  their  interest  of,  in,  and  to'the  several  patents,  and  of, 
in,  and  to  the  premises  and  stock  in  trade,  and  to  part  with  the  same  to 
a  company."  These  terms  indicate  an  intention  not  to  destroy,  but  to 
transfer  unimpaired  the  monopoly  secured  by  the  patents.  But  it  has 
been  said  it  does  not  appear  from  the  pleadings  that  the  plaintiff'  knew  of 
this  proviso  in  the  patents,  and  that  the  insertion  of  such  a  proviso  in 
patents  is  not  required  by  any  law.  But  we  must  presume  that  he  knew 
the  contents  of  the  patents  referred  to  by  the  bond  on  which  he  brings 
his  action;  of  the  patents  which,  it  appears  by  the  same  bond,  he  under- 
takes the  sale  in  the  manner  stated  in  that  bond.  Every  man  who  un- 
dertakes to  do  a  thing  must  be  presumed  to  know  what  he  undertakes, 
unless  he  can  shew  that  he  has  been  deceived  by  the  other  party.  How 
could  he  undertake  to  negotiate  for  tUe  sale  of  the  patents,  unless  he  had 
seen  them  and  knew  their  contents  ? 

If  the  plaintiff  knew  the  terms  on  which  the  patents  were  granted, 
he  must  know  that  what  he  undertook  to  do  could  not  be  done.  As  he 
cannot  legally  perform  his  part  of  the  contract,  he  never  can  be  in  a 
condition  to  recover  the  compensation  stipulated  to  be  paid  on  its  full 
and  complete  performance.  There  are  some  old  authorities  which  say, 
that  if  a  man  binds  himself  by  the  condition  of  his  bond  to  do  what  at 
the  time  he'executed  the  bond  it  was  impossible  for  him  to  do,  the  bond 
shall  be  considered  as  without  condition,  and  the  obligee  may  recover 
the  penalty.  These  authorities  are  rather  opposed  to  the  plaintiff's  claim; 
they  apply  only  to  cases  where  there  is  nothing  to  be  done  by  the 
obligee;  here  the  plaintiff  must  do  something  before  the  bond  can  be 
enforced.  If  what  he  is  to  do  can  never  be  legally  done,  the  instrument 
must  be  inoperative.  The  plaintiff  not  having  performed  the  first  con- 
dition, can  never  have  a  right  of  action  on  it.  The  situation  of  the 
plaintiff  in  this  case,  is  like  that  of  the  defendants  in  the  cases  alluded  to. 
It  is  his  fault  that  he  has  undertaken  what  he  cannot  perform.  In  Pul- 
lerton  y.Agnew,  1  Salk.  172,  Holt  C.  J.  said,  *'  Where  the  condition 
is  underwritten  or  indorsed,  there  that  only  is  void,  and  the  obligation 
is  single,  but  where  the  condition  is  part  of  the  lien  itself,  and  incorpora- 
ted therewith,  if  the  condition  be  impossible,  the  obligation  is  void.'* 
In  the  case  before  us,  the  service  of  the  plaintiff,  and  payment  for  it  by 
the  defendant,  are  incorporated  together,  and  if  the  service  cannot  be 
performed,  the  whole  instrument  is  a  nullity. 

But  it  is  apparent  from  the  facts  disclosed  by  the  condition  of  this 
bond  and  the  patents  that  the  scheme  in  which  the  parlies  to  this  action 
were  engaged  was  one  of  those  bubbles  by  which,  to  the  disgrace  of  the 
present  age,  a  few  projectors  have  obtained  the  money  of  a  great  number 
of  ignorant  and  credulous  persons,  to  the  ruin  of  those  dupes  and  their 
families,  and  by  which  a  passion  for  gambling  has  been  excited,  that 
has  been  most  injurious  to  commerce  and  to  the  morals  of  the  people. 

What  any  one  must  discover  from  reading  the  instruments,  the  parlies 
to  them  must  be  fully  informed  of.  It  cannot  be  too  well  known,  that 
there  is  no  place  for  persons  engaged  in  such  transactions  in  courts  ap- 
j)oinlcd  for  Ihe  decision  of  civil  causes.  Although  the  statute  off*  G. 
I.  be  repealed,  the  common  law  relating  to  such  schemes  is  expressly 


446  DuvERciiER  V.  Fellows.  M.  T.  1828. 

leserveil  by  iHe  repealing  statute,  and  no  one  doubts,  if  it  can  be  shewn, 
as  it  easily  may,  that  such  schemes  are  fraud-traps,  and  injurious  to  the 
public  welfare,  that  the  forming  of  them  is  an  indictable  offence  at  the 
common  law. 

The  seventh  plea  states,  ahd  the  demurrer  admits,  that  the  plaintiff  and 
the  defendant  intended  that  the  company  which  the  plaintiff  undertook 
to  form  should  act  as  a  corporate  body  without  any  charter  from  the 
King,  and  that  the  benefit  of  the  letters  patent  were  to  be  enjoyed  by 
this  pretended  corporate  body,  and  that  the  capital  of  this  body  was  to 
be  divided  into  10,000  shares,  which  were  to  be  transferable  and  as- 
signable. 

It  has  been  said  at  the  bar,  that  the  parties  might  intend  to  obtain  an 
act  of  parliament  to  give  this  body  a  legal  existence.  Nothing  of  this 
intention  appears  on  the  record. 

It  has  been  further  said,  that  the  defendant  should  have  shewn  how 
the  parties  intended  to  act  as  a  corporation.  If  this  is  not  correctly- 
pleaded,  advantage  should  have  been  taken  of  the  technical  defect  by  spe- 
cial demurrer.  If  what  they  intended  to  do  would  not  have  been  acting  as 
a  corporation,  they  should  have  traversed  the  plea.  By  demurring,  the 
plaintiff  has  confessed  himself  guilty  of  intending  to  form  a  company  that 
was  to  act  as  a  corporation. 

But  the  shares  were  to  be  transferable.  There  can  be  no  transferable 
shares  of  any  stock  except  the  stock  of  corporations,  or  of  joint-stock 
companies  created  by  acts  of  parliament.  When  it  is  said  the  shares 
were  to  be  transferable,  that  must  mean,  that  the  assignee  was  to  be 
placed  in  the  precise  situation  that  the  assignor  stood  in  before  the  as- 
signment; that  the  assignee  was  to  have  all  the  rights  of  the  assignor, 
and  to  take  upon  him  all  his  liability.  Now  the  assignee  can  join  in  no 
acHon  for  a  cause  of  action  that  accrued  before  the  assignment.  Such 
rights  of  action  must  still  remain  in  the  assignor,  who,  notwithstanding 
he  has  retired  from  the  company,  will  still  remain  liable  for  every  debt 
contracted  by  the  company  before  he  ceased  to  be  a  member.  Indeed, 
the  members  of  corporations  cannot  assign  their  interest,  and  force  their 
assignees  into  the  corporation,  without  the  authority  of  an  act  of  parlia- 
ment. Such  authority  is  expressly  given  by  the  bank  acts,  the  South- 
Sea  acts,  and  by  other  statutes  creating  companies  that  possessed  stock, 
which  it  was  deemed  proper  to  be  rendered  transferable. 

The  pretending  to  be  possessed  of  transferable  stock  is  pretending  to 
act  as  a  corporation,  and  pretending  to  possess  a  privilege  which  does 
not  belong  to  many  corporations.  But  this  is  put  only  as  one  of  the 
proofs  of  the  intention  of  the  projectors  of  this  company  that  it  should 
act  as  a  corporation.  It  is  not  necessary  on  these  pleadings  to  decide 
whether  the  forming  a  company  with  such  shares  is  of  itself,  without 
other  circumstances,  pretending  to  act  as  a  corporation;  because,  it  is  by 
the  pleadings  distinctly  admitted,  that  the  plaintiff  and  defendant  inten- 
ded that  the  company  should  act  as  a  corporation.  Persons  who,  with- 
out the  sanction  of  the  legislature,  presume  to  act  as  a  corporation,  are 
guilty  of  a  contempt  of  the  King,  by  usurping  on  his  prerogative.  By 
the  9th  of  Anne,  c.  20,  the  Court  may  not  only  give  judgment  of  ouster, 
hut  may  fine  a  defendant  convicted  on  a  quo  warranto.  This  shews  that 
the  usurpation  is  considered  as  a  criminal  act.  But  it  has  been  insisted, 
tiiat  the  usiir|)alion  is  only  criminal  where  a  party,  without  authority, 
acts  in  a  public  offirn,   and  that  the  pretended  corporation  which  these 


5  Bingham,  248.  447 

parties  were  to  set  up  did  not  afiect  the  public,  but  was  a  sclieine  witli 
which  certain  individuals  only  were  connected.  Most  of  the  statutes 
relative  to  quo  warrantos,  from  the  statute  of  Gloucester  down  to  the  9th 
of  Anne  inclusive,  have  the  words  offices  and  franchises.  Franchises 
are  privileges  for  the  advantage  of  individuals.  In  Com.  Dig.  title  Quo 
Warranto,  many  things  are  mentioned  as  matters  for  which  quo  warran- 
to will  lie,  which  are  valuable  only  to  the  individuals  who  claim  them 
against  the  crown,  and  are  not  connected  with  any  public  duty.  But  it 
concerns  the  public  that  bodies,  composed  of  a  great  number  of  persons 
with  large  disposable  capitals,  should  not  be  formed  without  the  au- 
thority of  the  crown,  and  subject  to  such  regulations  as  the  King  in  his 
wisdom  may  deem  necessary  for  the  public  security. 

The  acting  as  such  a  corporation,  without  charter  from  the  crown,  is 
contrary  to  law,  and  no  man  can  maintain  an  action  on  a  bond  given  to 
secure  payment  of  a  compensation  to  the  obligee  for  the  formation  of  any 
such  pretended  corporations.     For  these  reasons,  judgment  must  be  for 


thejdefendant. 


Judgment  for  defendant  accordingly. 


SYMES  V.  ROSE.— p.  269. 

Money  paid  into  court  under  7  &  8  G.  4.  c.  71.,  to  abide  the  event  of  a  cause,  is 
not  paid  out  under  a  rule  absolute  in  the  first  instance. 


CARRUTHERS  v.  PAYNE,  Assignee  of  THOMPSON,  a  Bankrupt. 

p.  270. 

A  chariot  was  built  to  plaintiff's  order,  and  paid  for  by  him:  when  finished  in 
other  respects,  plaintiff  ordered  a  front  seat  to  be  added;  but  the  builder  being 
slow  in  making  this  addition,  plaintiff  sent  for  the  chariot  repeatedly,  and  the 
builder  promised  to  deliver  it.  IMaintiff  being  afterwards  dissatisfied,  ordered 
the  chariot  to  be  sold,  and  while  it  was,  according  to  the  custom  of  the  trade, 
standing  in  the  builder's  warehouse  for  that  purpose,  the  front  scat  not  having 
been  added,  the  builder  became  a  l)ank.rupt,  and  his  assignee  seized  the  chariot: 
more  than  three  months  afterwards  the  plaintiff  commenced  his  action  : 

Held,  first,  that  the  plaintiff  had  sufficient  property  to  maintain  trover;  secondly, 
that  the  chariot  did  not  pass  to  the  assignee  as  being  in  tin-  order  and  disposi- 
tion of  the  banknipt  with  the  consent  of  tlic  owner;  and,  thirdly,  that  the  as- 
signee was  not  within  the  protection  of  the  forty-fourth  section  of  6  G.  4,  c.  16., 
which  limits  actions  to  three  months  after  the  fact  committed. 


DICAS  V.  JAY.— p.  281. 

,  The  objections  against  an  award  ought  to  be  specified  in  a  rule  nisi  ol)taincd 
for  the  purpose  of  setting  it  aside;  l)ut  an  omission  in  That  respect  is  not  con- 
clusive to  preclude  tlie  Court  from  rtitertainiiig  tlie  objections. 

.  Upon  a  declaration  of  eleven  special  counts  for  negligence,  and  common 
counts  for  money  paid,  &c.,  an  arl)itrator,  under  an  order  of  Nisi  I'rius.  found 
that  the  plaintiff  had  "good  cause  of  action  for  2.1/.  l-k.  10c/.,"  and  directed  a 
verdict  to  be  entered  up  for  that  sum;  Held,  sufficiently  certain. 

Assumpsit  against  the  defendant,  an  attorney,  Cut   negligence  in  the 


448  DicAS  V,  Jay.  M.  T.  1828. 

coiulucl  of  a  suit.  Tlicrc  were  eleven  special  counts  on  Ihc  negligence, 
ami  connnon  counts  lor  money  paid,  &c.  Money  was  paid  into  court 
sullicicntlo  cover  tiic  demand  on  the  common  counts. 

The  cause  having  been  referred  to  arbitration,  under  an  order  of  Nisi 
Prius,  the  arbitrator  found  that  the  plaintiff  had  "good  cause  of  action 
for  23/.  14s.  lOi/.,"  and  directed  a  verdict  to  be  entered  for  the'plaintiff 
for  that  sum. 

By  consent,  judgment  was  to  be  entered  up  as  of  last  term. 

Ci'oss  Serjt.  moved  for  a  rule  nisi  to  set  aside  this  award;  alleging, 
that  as  the  question  of  negligence  had  been  submitted  to  the  arbitrator, 
and  he  had  found  that  the  plaintiff  had  good  cause  (not  cause*)  of 
action,  he  ought  to  have  shewn  whether  the  negligence  or  the  money 
paid  was  the  cause  of  action,  and  to  have  ordered  the  verdict  to  be  en- 
tered for  the  plaintiff  on  the  count  to  which  the  finding  applied;  other- 
wise it  did  not  appear  whether  he  had  enquired  into  all  the  matters  sub- 
mitted to  him;  and  if  the  plaintiff  had  no  cause  of  action  in  respect  of  the 
negligence,  the  cause  of  action  on  the  money  counts  was  covered  by  the 
money  paid  into  court,  and  the  award  was  bad  for  uncertainty. 

A  rule  nisi  was  granted;  but  the  grounds  on  which  it  was  sought  to 
set  aside  the  award  not  being  specified  in  it, 

Wilde  Serjt. ,  who  shewed  cause,  objected,  that  by  the  practice  of  the 
Court  the  rule  nisi  ought  to  state  the  objections  to  the  award,  which 
could  not  otherwise  be  entered  on;  but  he  insisted  that  the  award  was 
sufficiently  certain,  amounting  in  effect  to  a  general  verdict  on  all  the 
counts. 

Cross  and  Russell  Serjts.  in  support  of  the  rule.  There  is  no  written 
rule  of  practice  requiring  in  this  Court  the  statement  in  the  rule  nisi  of 
the  specific  grounds  on  which  it  is  proposed  to  set  aside  an  award;  and  if 
any  such  practice  exists — fthe  prothonotary  here  stated  that  it  did) — it 
is  not  conclusive  against  the  Courts  having  the  objections  argued:  the 
rule  in  the  King's  Bench,  although  it  requires  the  objections  to  be  spe- 
cified, does  not  preclude  the  Court  from  hearing  them,  if  they  be  not 
specified. 

Best  C.  J.  The  practice  as  to  stating  in  the  rule  nisi  the  grounds  of 
objection  to  an  award  is  not  so  conclusive  as  to  prevent  us  in  this  Court 
from  hearing  the  objections,  although  not  specified.  But  this  award  is  so 
clearly  made  upon  the  whole  matter  that  I  see  no  reason  for  setting  it 
aside.  In  effect,  a  verdict  has  been  found  on  all  the  counts.  The  judg- 
ment, too,  being  entered  up  as  of  last  term,  can  we  now  set  it  aside? 

Park  J.  I  come  to  the  same  conclusion,  with  considerable  reluctance, 
under  the  circumstances  of  this  case. (a)  I  am  also  of  opinion,  after 
■  sending  to  the  Court  of  K'ng's  Bench,  that  the  practice  which  Requires 
the  objections  to  an  award  to  be  specified  in  the  rule  nisi  for  setting  it 
aside  is  not  conclusive  to  prevent  the  Court  from  entering  into  the  ob- 
jections although  not  so  specified.  But  passing  by  any  formal  errors,  I 
think  the  finding  of  the  arbitrator  is  on  all  the  causes  of  action  referred 
to  him,  and  that,  therefore,  this  rule  must  be  discharged. 

BuRRouGii  J.  said,  that  it  was  without  doubt  the  practice  of  this 
Court  to  specify  the  objections  to  an  award  in  a  rule  nisi  for  setting  it 
aside,  but  concurred  in  thinking  this  award  sufficiently  certain. 

(a)  It  appeared  from  aflidavits  to  other  points  to  be  a  case  of  much  hardship 
on  the  defendant. 


5  Bingham,  281.  449 

Gaselee  J.  The  practice  is  not  inflexible;  but,  at  all  events,  here 
the  objection  would  have  been  stated  without  success.  The  arbitrator 
finds  that  the  plaintiff  had  good  cause  (not  a  good  cause)  of  action  for 
23/.  145.  lOd.  That  is  the  same  thing  as  if  he  had  said,  good  cause  of 
action  to  the  extent  of  23/.  14^.  lOd.  On  the  face  of  the  award,  there- 
fore, the  judgment  applies  to  the  whole  of  the  declaration,  and  this  rule 
must  be 

Discharged, 


BEDINGTON  v.  BEDINGTON.— p.  284. 

The  Court  discourages  the  practice  of  ordering  nihil  to  be  returned  to  a  scire 

facias. 

The  plaintiff  left  a  writ  of  scire  facias  with  the  sheriff,  lobe  returned 
nihil. 

The  sheriff  having  omitted  to  return  the  \vrit,  because  the  plaintiff  re- 
fused to  pay  a  sum  of  6s.  Sd.  more  than  what  he  considered  the  regu- 
lar fee, 

Wilde  Serjt.  obtained  a  rule  calling  on  the  sheriff  to  shew  cause  why 
he  should  not  return  the  writ,  and  pay  the  costs  of  the  motion. 

The  sheriff  thereupon  returned  the  writ,  but 

Russell  Serjt.  shewed  cause  against  that  part  of  the  rule  which  called 
for  the  costs  of  the  motion;  and  read  affidavits,  in  which  the  sheriff  at- 
tempted to  shew  he  had  demanded  no  more  than  was  usual. 

Best  C.  J.  thought  that  the  demand  had  been  improperly  made;  but 
adverting  to  the  circumstance  that  the  plaintiff  had  ordered  the  writ  to 
be  returned  nihil,  and  animadverting  on  the  mischief  and  injustice  of  pro- 
ceeding on  writs,  of  which  the  defendant  never  received  any  notice, 
considered  that  both  parties  were  to  blame.  With  a  view,  therefore, 
to  discourage  the  practice  of  ordering  returns  of  nihil,  tlie  Court  dis- 
charged the  rule  witliout  costs. 

Rule  discharged  accordingly. 


WEBB,  Demandant;  LANE,  Tenant.— p.  285. 

Judgment  signed  in  a  writ  of  riglit,  because  a  blank  was  lift  for  tlic  word  ra/ihrt 

in  the  count,  set  aside. 


Lord  FALINIOUTH  v.  (iEORGK.— p.  2Si\. 

1.  Kecjiing  up  a  capstcrn  and  ropr  in  a  rove  to  assist  Ijoats  in  landing,  and  witli- 
out wliicli  they  c.onld  not  safely  land  in  bad  weather,  Iltld,  a  good  considera- 
tion for  a  reasonable  toll  on  all  boats  fi'cqui  uting  the  cove,  whether  they  used 
the  capstcrn  f)r  not;  and  the  cnstoni  to  exa(  v  the  toll  held  good,  aUhonj;h  the 
party  claiming  it  was  neither  owner  of  theco\e  nor  lord  of  the  manor,  nor  were 
his  predecessors  shewn  to  have  been  such;  !iiil  he  and  tliey  had  always  been 
owners  of  the  spot  on  which  the  capstcrn  si'ixl,  and  of  an  estate  in  the  neigh- 
bourhf)od. 

•J.   Held,  that  a  fisherman  frer|ucnting  the  rove  was  not  a  competent  witness  for 
a  party  resisting  the  toll, 
VOL.  XV.  57 


450  Eluoutiiy  v.  Maundeu.  M.  T.  1828. 


ELWORTIIV  and  Others  v.  THOMAS  MAUNDER.— p.  295. 

Affidavit,  that  the  defendant  liad  undertaken  to  be  answerable  to  tlie  creditors  of 
J.  and  W.  M.  for  tlic  anunuit  of  the  del)ts  of  such  creditors,  on  their,  the  credi- 
tors, undertaking  not  to  issue  a  commission  of  bankrupt  against  J.  and  W.  M. 
before  the  16th  of  August;  tluit  J.  and  W.  M.  owed  i)laintiffs  1000/.;  that  nei- 
ther i)hiintifis,  nor,  as  they  were  informed  and  believed,  any  other  of  the  credi- 
tors of  J.  and  \V.  M.  sued  out  a  commission  of  bankrupt  against  J.  and  VV.  M. 
before  the  16th  of  August;  that  neither  J.  and  W.  M.  nor  defendant  paid  plain- 
tiffs the  1000/.  due  to  them  from  J.  and  W.  M.j  and  that  defendant  owed  plain- 
tiffs 1000/.  upon  his  said  undertaking; 

Held,  insufficient  to  hold  defendant  to  bail. 

The  defendant  was  arrested  and  holden  to  bail  on  the  following  affida- 
vit:— "William  Elworthy  of  Wellington,  in  the  county  of  Somerset, 
woollen  manufacturer,  maketh  oath  and  saith,  that  by  a  memorandum 
in  writing,  bearing  date  the  1 1th  day  of  August  1828,  and  signed  by 
Thomas  Maunder  ofCrediton,  in  tlie  county  of  Devon,  farmer,  the  said 
Thomas  INIaunder  did  undertake  and  agree  to  be  answerable  to  the  credi- 
tors of  certain  persons  using  the  style  and  firm  of  William  Maunder 
and  James  Maunder,  for  the  amount  of  the  debts  of  such  creditors  on 
their  (the  said  creditors)  undertaking  not  to  issue  a  commission  of  bank- 
rupt, or  sue  out  process  against  them  the  said  W.  Maunder  and  J. 
INIaunder,  on  or  before  Saturday,  the  16th  day  of  August,  then  instant; 
and  this  deponent  further  saith,  that  he  and  one  Thomas  Elworthy  the 
elder,  and  one  Thomas  Elwortliy  the  younger,  trading  together  as  co- 
])artners,and  using  the  style  and  firm  of  ^dessrs.  Thomas  Elworthy  and  Co., 
were  and  now  arc  creditors  of  the  said  W.  INIaunder  and  J.  Maunder; 
and  that  they,  the  said  W.  Maunder  and  J.  Maunder,  were  on  the  11th 
day  of  August,  instant,  and  still  are,  indebted  to  this  deponent  and  the 
said  Thomas  Elworthy  the  elder,  and  Thomas  Elworthy  the  younger, 
in  a  certain  large  sum  of  money,  to  wit,  the  sum  of  1000/.  and  upwards, 
tliat  is  to  say,  the  sum  of  300/.,  on  a  bill  of  exchange,  drawn  by  the  said 
W.  Maunder  and  J.  Maunder  upon  one  Joseph  Lambert  and  payable  to 
the  order  of  tlie  said  Messrs.  Thomas  Elworthy  and  Co.,  at  a  certain  day 
now  past,  and  in  the  further  sum  of  700/.  and  upwards,  for  goods  sold 
and  delivered  b)'  this  deponent  and  the  said  Thomas  Elworthy  the  elder, 
and  Thomas  -Elworthy  the  younger,  to  the  said  William  Maunder  and 
James  Maunder,  and  at  their  request;  and  this  deponent  further  saith, 
that  he,  confiding  in  the  said  undertaking  and  agreement  of  the  said 
'J'homas  Maunder,  did  not,  nor  hath  the  said  Thomas  Elworthy  the 
elder,  and  the  said  Thomas  Elwortliy  the  younger,  or  either  of  them, 
nor  have  nor  hath  (as  this  deponent  is  informed  and  believes)  any  or  either 
of  the  other  creditors  of  the  said  W.  Maunder  and  J.  Maunder  caused  a 
commission  of  bankrupt  to  be  issued,  or  sued  out  any  writ  or  other  pro- 
cess against  them  the  said  W.  Maunder  and  J.  Maunder,  or  either  of 
them,  on  or  before  the  said  16th  day  of  August;  yet  that  the  said  Thomas 
INIaunder  (although  often  requested  so  to  do)  hath  not,  nor  have  the  said 
W.  Maunder  and  J.  Maunder,  or  either  of  them,  as  yet  paid  the  said 
sum  of  1000/.,  or  upwards,  or  any  part  thereof,  to  this  deponent,  or  to 
llie  said  Thomas  Elworthy  the  elder,  or  Thomas  Elworthy  the  younger, 
or  either  of  them,  but  that  the  same  still  remains  wholly  due  and  un- 
paid; and  this  deponent  further  saith,  that  the  said  Thomas  Maunder  is 
justly  and  truly  indebted  to  this  deponent,  and  the  said  Thomas  Elwor- 


5  Bingham,  295.  451 

thy  the  elder  and  Thomas  Ehvorthy  the  younger,  in  the  said  sum  of 
1000/.  and  upwards,  upon  and  by  virtue  of  the  said  memorandum,  and 
the  undertaking  and  agreement  of  the  said  Thomas  Maunder  therein 
mentioned;  and  this  deponent  lastly  saith,  that  no  ofler  hath  been  made 
to  this  deponent,  or  to  the  said  Thomas  Ehvorthy  the  elder,  and  Thomas 
Elworthy  the  younger,  or  either  of  them,  by  the  said  Thomas  Maunder, 
or  by  the  said  William  INIaunder,  or  either  of  them,  to  pay  the  said  sum 
of  1000/.  and  upwards,  or  any  part  thereof,  in  any  note  or  notes  of  the 
Governor  and  Company  of  the  Bank  of  England  expressed  to  be  paya- 
ble on  demand." 

A  rule  nisi  was  obtained  for  delivering  up  tlie  bail-bond  to  be  cancel- 
led, on  the  ground  that  the  defendant's  liability  to  the  plaintills,  if  he 
was  liable  at  all,  depended  on  the  performance  of  a  condition  precedent, 
namely,  an  undertaking  by  all  the  creditors  of  James  and  William 
Maunder  not  to  sue  out  a  commission  of  bankrupt  against  them  before 
the  16th  of  August,  and  the  affidavit  contained  no  averment  that  any 
such  an  undertaking  had  been  given,  nor  even  (except  upon  information 
of  others)  that  all  the  creditors  had  actually  abstained  from  suing  out  a 
commission  during  that  period.  It  was  also  objected  that  it  did  not  ap- 
pear that  the  plaintiffs  were  so  much  as  parties  to  the  agreement. 

Jones  and  Stephen  Serjts.,  who  shewed  cause,  endeavoured  to  answer 
these  objections;  but 

Wilde  Serjt. ,  in  support  of  the  rule,  having  referred  to  PhllUpps  v. 
Bateman,  IG  East,  35G,  where  a  general  undertaking,  "to  be  accountable 
for  the  payment  of  the  notes  issued  by  the  Milford  bank,  as  far  as  the  sum 
of  30,000/.  will  extend  to  pay,"  was  holden  not  to  confer  a  right  of  action 
to. an  individual  holder  of  such  notes;  and  to  M^Pherson  v.  Lovic,  1  B.  & 
C.  108,  where  the  Court  set  aside  a  bail-bond  taken  on  an  alfidavit  ''that 
the  defendant  had  promised  to  pay  the  plaintiff  1000/.  if  he  did  not  marry 
her  in  March  or  April  next;  that  she  was  ready  to  l^c  married  to  him,  but 
that  he  neither  married  her  in  March  or  April  nor  paid  the  1000/:,"  be- 
cause, no  similar  promise  by  the  plaintitl  being  averred,  it  did  not  ap- 
pear that  there  was  any  consideration  for  the  defendant's  promise, 

The  Court  held,  tliat  in  any  view  of  tlio  case  an  undertaking  by  all 
the  creditors  of  .lames  and  \V'illiam  Maunder  not  to  sue  out  a  commis  • 
sion  against  them  was  a  condition  precedent  to  any  liability  to  he  incur- 
red by  the  defendant;  and  that  the  performance  of  such  condition  not 
having  been  alleged  in  the  aOidavit  (r/),  t!ic  rule  must  be  made 

Absolute. 

(a")  No  such  undertaking  was  ever  given  by  all  tlic  rroditoiR,  ns  :ip])('arecl  by 
other  afliflav  its  filed  in  support  of  the  rulf. 


iMEMOUANDA. 

In  the  course  of  this  term  James  Pdr/cCj  lOstpiiic,  was  called  to  the 
degree  of  the  coif,  and  gave  rings  wilb  the  fullowing  motto: — '■'■'icnax 
jiistitiir,^''  and  on  the  same  day  look  his  seat  as  one  of  the  jjuisue  Judges, 
in  the  Court  of  K  ing's  Bench. 

T/innKis  DiDnian,  Esquire,  received  a  palnnt  ofiiiiv'iirMH-e. 

KNn  OF  MllCHAni.MAS    I  I.lMt. 


CASES 

ARGUED  AND  DETERMINED 

IN    THE 

COURT  OF    COMMON   PLEAS, 

AND  OTHER  COURTS, 

IN 

HILARY  TERM, 

In  the  Ninth  and  Tenth  Years  of  the  Reign  of  George  IV.— 1829. 

ABBEY  V.  LILL.— p.  299. 

1.  Semble,  that  a  postmark  may  be  proved  by  any  one  in  the  habit  of  receiving 
letters  by  the  post. 

2.  An  action  to  recover  the  balance  of  an  account  is  not  within  the  Boston  Court 
of  Conscience  Act,  if  the  account  originally  exceeded  5/.,  although  the  sum 
sought  to  be  recovered  is  less  than  51. 

Action  to  recover  3/.  65.,  remaining  due  upon  a  bill  of  exchange  for 
8/.  65.,  with  interest,  which  bill  had  been  given  to  secure  the  balance 
of  an  account  between  the  plaintiff  and  defendant,  originally  amounting 
to  400/.  The  declaration  contained  also  a  count  upon  an  account  sta- 
ted. The  business  to  which  the  account  related  had  been  transacted  in 
London. 

At  the  trial  before  Best  C.  J.,  London  sittings  after  Hilary  term,  the 
only  evidence  in  support  of  the  plaintiff's  demand  was  a  letter  from  the 
defendant,  which,  provided  it  were  written  in  1825,  contained  a  suffi- 
cient acknowledgment  to  entitle  the  plaintiff  to  a  verdict.  The  letter, 
however,  was  dated  by  the  writer  January  1824. 

To  shew  that  it  was  written  in  1825,  and  that  the  figure  4  had  been 
put  for  5,  by  a  mistake  common  at  the  commencement  of  every  new 
year,  the  plaintiff  relied  on  the  postmark.  To  this  it  was  objected,  on 
the  part  of  the  defendant,  that  the  mark  itself  was  not  clear;  and  that,  at  all 
events,  the  genuineness  of  a  postmark  could  only  be  established  by  call- 
ing a  person  from  the  post-oflice. 

The  learned  Chief  Justice  said,  that  if  there  were  any  doubt  about  the 
genuineness  of  the  mark,  he  would  send  for  a  clerk  from  the  post-office. 

The  jury,  however,  entertained  no  doubt  about  the  genuineness  of  the 
mark,  or  the  date  intended,  and  gave  their  verdict  for  the  plaintiff. 

fVilde  Serjt.  obtained  a  rule  nisi  to  set  aside  this  verdict,  upon  the 


5  Bingham,  299.  453 

ground  that  the  postmark  had  been  improperly  taken  as  evidence;  or  to 
enter  a  suggestion  under  the  Boston  Court  of  Conscience  Act,  47  G.  3. 
sess.  2.  c.  1.  s.  IS.  (a),  to  deprive  the  plaintifl'  of  his  costs,  upon  an 
affidavit  that  the  defendant  lived  within  the  jurisdiction  of  that  court. 

Jones  Serjt.  shewed  cause,  and  referred  to  Hex  v.  IVatson,  1  Campb. 
214;  xdrcangelo  v.  Thompson,  2  Camph.  G20;  Fletcher  v.  Braddyl, 
Stark.  Ev.  Appx.  4  to  853. 
Wilde,  contra. 

Best  C.  J.  The  jury  were  satisfied  that  the  mark  on  this  letter  was 
the  post-office  mark;  but  the  question  is,  Whether  it  was  necessary  that 
that  fact  should  have  been  proved?  and  by  whom?  Certainly  not  by  the 
postmaster  of  another  office;  for  he  would  know  no  more  of  the  mark  than 
any  other  individual;  so  that  in  Fletcher  v.  Braddyl  the  proof  was  car- 
ried no  farther  than  in  the  present  case.  If  there  be  any  doubt  as  to  the 
genuineness  of  the  mark,  the  person  who  made  it  is  the  best  witness  to 
be  called;  the  knowledge  of  all  other  persons  on  the  subject  is  equal; 
but  I  should  be  slow  to  say,  that  a  witness  should  be  called  to  a  distance, 
from  London,  or  Cumberland,  perhaps,  to  prove  the  postmark  of  every 
letter,  the  date  of  which  may  be  disputed. 

However,  in  the  present  case,  I  do  not  decide  the  point:  I  decide  on 
the  ground  that  I  offered  to  send  to  the  post-office  for  the  person  vvho 
made  the  mark,  but  such  strictness  of  proof  was  then  no  longer  insisted 
on.  Then,  is  this  a  case  within  the  ISoston  act?  If  that  act  had  been 
confined  to  cases  where  the  plaintiff  and  defendant  both  lived  in  Boston, 
I  should  have  been  disposed  to  give  it  the  fullest  effect;  but  I  am  un- 
willing to  make  Boston  a  place  of  refuge  for  debtors,  where  the  debt 
has  been  incurred  in  London.  Such  an  act  ought  to  receive  a  strict  con- 
struction; but  this  case  is  taken  out  of  it  by  the  provision  in  the  fifteenth 
section,  the  action  having  been  brought  to  recover  the  balance  of  an  ac- 
count originally  exceeding  five  pounds. 

Gaselee  J.  (A)     Under  the  circumstances  of  this  case  I  think  the  rule 

(a)  By  the  Boston  Court  of  Conscience  Act,  47  G.  3.  c.  1.  s.  18,  it  is  enacted, 
"  That  it  shall  and  may  be  lawful  to  and  for  any  person  or  persons  (whether  such 
person  or  persons  sliall  reside  witliin  llic  jurisdiction  of  the  said  Court  or  not) 
having  any  debt  or  debts,  on  the  balance  of  account  or  otlierwise  howsoever,  not 
exceeding  the  value  of  five  pounds,  due  or  owing  or  belonging  to  him,  her,  or 
them,  by  or  from  any  other  person  or  persons  whatsoever  inhabiting,  residing,  or 
being  within  the  said  borougli  or  parish  of  Boston,  or  keeping  or  using  any  house, 
warehouse,  wharf,  quay,  lodging,  shop,  shed,  stall,  stand,  or  using  or  frecpienting 
the  markets  there,  or  seeking  a  liveliliood,  or  in  any  wav  trading  or  dealing  with- 
in the  same,  to  apply  to  tlie  clerk  of  the  court  for  tlie  time  being,  or  his  deputv, 
who  shall  immediately  make  out  and  deliver  to  one  of  the  scrjcunts  of  the  said 
court  for  the  time  being  a  summons  in  writing,"  &c.     And, 

By  section  41,  it  is  also  enacted,  "That  if  atiy  action  or  suit  for  any  debt  rcco- 
veral)le  by  virtue  of  this  act  in  the  said  court  oi'  re(|uests  shall  lie  commenced  in 
any  otiier  court  wliatsoever,  or  elsewhere  than  in  tlic  said  court  of  retjuests,  then 
and  in  every  such  case  theplaintifior  plaintifi's  in  such  action  or  suit  shall  not  by 
reason  of  a  verdict  for  him,  her,  or  them,  or  otherwise  have  or  l)e  entitled  to  any 
costs  whatsoever;  and  if  the  verdict  shall  l>e  given  for  the  defendant  or  defi-n- 
dants  in  such  action  or  suit,  and  the  judge  or  judges  Ijefore  whom  tlie  same  sliall 
be  tried  or  heard  sliall  think  fit  to  certify  that  such  debt  ought  to  have  I)een  re- 
covered in  tlie  said  court  of  requests,  then  and  in  every  such  case  such  defendant 
or  defendants  shall  have  costs,"  &c. 

(6)  Park  J.  was  absent  on  account  of  illness  ;  and  Burrough  J.  was  at  cham- 
bers, but  concurred  in  the  judgment  of  the  Court. 


454  Ferguson  v.  Ciiristai,l.   11.  T.  1829. 

ought  to  be  ilischarged.     I  do  not  lay  it  down  that  a  postmark  is  to  l)e 
taken  to  be  genuine  without  regular  proof. 

In  general,  the  mark  is  not  disputed;  but  wliere  it  is  disputed,  it 
ought,  perhaps,  to  be  proved,  though  what  might  be  deemed  to  amount 
to  proof  is  not  clear;  a  postmistress  of  another  oflice  having  been  allow- 
ed to  give  evidence  on  the  point,  while  persons  who  live  in  London, 
and  see  the  mark  every  day,  are  on  that  account,  perhaps,  as  competent 
to  speak  concerning  it  as  such  a  postmistress.  But  here,  as  the  Chief 
Justice  ofTcred  to  send  to  the  post-office,  and  was  not  required  to  do  so, 
the  objection  seems  to  have  been  waived. 

As  to  the  suggestion,  the  bill  of  exchange,  on  which  the  action  was 
brought,  was  given  to  secure  the  balance  of  an  account  originally  ex- 
ceeding five  pounds;  the  case,  therefore,  falls  clearly  within  the  provi- 
sion of  the  fifteenth  section,  and  the  rule  must  be 

Discharged. 


FERGUSON  v.  CIIRISTALL  and  Another.— p.  305. 

F. ,  who  had  hired  a  ship  and  its  tackle  of  the  plaintiff  for  three  voyages,  at  the 
end  of  the  first,  being  apprehensive  of  a  seizure  under  the  process  of  an  admi- 
ralty court,  placed  the  cables  and  anchors  on  the  defendant's  wharf,  alongside 
of  which  the  ship  lay.  The  ship  was  then  seized  for  seamen's  wages  and  a 
debt  on  bottomry,  and  shortly  afterwards  was  sold  under  admiralty  process, 
without  the  anchors  and  cables. 

Two  days  before  the  sale,  the  plaintiff  demanded  of  the  defendant  the  anchors 
and  cables  on  his  wharf,  which  the  defendant,  holding  them  from  F.,  refused  to 
give  up. 

Held,  that  on  this  demand,  previous  to  the  sale,  the  plaintiff  could  not  sue  the  de- 
fendant for  the  anchors  and  cables  in  trover,  although  they  had  not  been  re- 
moved out  of  the  ship  in  the  ordinary  course  of  business  :  Held,  also,  that  the 
removal  of  them  from  the  ship  to  the  wharf,  whereby  they  escaped  the  admi- 
ralty sale,  was  no  injury  to  the  plaintiff 's  reversionary  interest. 

The  plaintiff,  a  ship-owner,  who  had  let  out  his  ship  on  a  charter- 
party,  declared  upon  an  alleged  injury  to  his  reversionary  interest  in 
the  ship  and  its  tackle.  He  also  added  a  count  in  trover  for  anchors  and 
cables. 

At  the  trial  before  Best  C.  J,,  London  sittings  after  Trinity  term,  it 
appeared  that  Frazer,  Living,  and  Co.  had  chartered  the  plaintiff's  ship 
for  three  voyages:  that  upon  her  return  home  at  the  end  of  the  first  voy- 
age, the  charterers  with  considerable  speed  removed  the  anchors  and 
cables  from  the  ship  to  the  defendant's  wharf  alongside:  that  very  soon 
after  this  had  been  done,  on  the  Sth  of  December,  1827,  the  ship  was 
arrested  under  an  admiralty  warrant,  by  the  holder  of  a  bottomry  bond, 
given  by  the  charterer's  captain  for  the  equipment  and  outfit  of  the  ship, 
and  also  for  provisions,  which  latter,  with  the  pay  of  the  crew,  the  char- 
terers were  bound  under  the  charter-party  to  provide. 

Subsequently  to  December  other  warrants  were  lodged  against  the 
ship,  for  the  pay  of  the  crew,  &c.  to  the  amount  of  2100/.  more.  A  de- 
cree of  sale  was  given  the  21&t  of  March,  and  the  ship  was  sold  on  the 
1st  of  April  1828. 

On  the  2Sth  of  March  1828,  the  plaintiff  demanded  the  anchors  and 
cables  of  the  defendants,  who  refused  to  give  them  up,  alleging  that  they 
did  not  know  the  plaintiff  in  the  business. 


5  Bingham, 305.  455 

It  was  contended  that  the  anchors  and  cables  had  been  improperly  re- 
moved from  the  ship  to  avoid  the  admiralty  process:  that  if  they  had 
remained  on  board,  and  had  been  seized  and  sold  with  the  ship,  a  sur- 
plus would  have  remained  upon  the  sale,  after  satisfying  the  admiralty 
demands,  and  that  the  plaintiff's  reversionary  interest  expectant  on  the 
determination  of  the  term  granted  by  the  charter-party  was  injured  to 
the  extent  of  that  surplus:  or  that  at  all  events,  by  the  improper  remo- 
val of  the  anchors  and  cables  from  the  ship,  the  right  to  the  possession 
of  them  re-vested  in  the  plaintiff  sufficiently  to  support  his  count  in 
trover. 

To  this  it  was  answered,  that  the  charterers  had  in  the  ordinary 
course  of  business  a  right  to  remove  the  anchors  and  cables  from  the 
ship  to  the  wharf:  that  it  was  not  easy  to  see  how  the  plaintiff's  rever- 
sionary interest  was  injured  by  the  anchors  and  cables  not  having  been 
seized  and  sold :  and  that  according  to  the  terms  of  the  charter-party  he 
could  have  no  right  to  the  possession  of  them  till  the  expiration  of  the 
three  voyages,  so  that  there  was  no  evidence  to  support  the  count  in 
trover.     Gordon  v.  Harper^  7  T.  R.  9. 

The  learned  Chief  Justice  left  it  to  the  jury  to  consider,  first.  Whe- 
ther the  anchors  and  cables  had  been  taken  out  of  the  vessel  for  a  legiti- 
mate purpose,  or  to  avoid  the  process  of  the  court  of  admiralty?  and, 
Secondly,  if  so.  Whether  the  plaintitlhad  sustained  any  injury? 
The  jury  found  that  the  anchors  and  cables  had  not  been  removed  in 
the  ordinary  course  of  business,  and  that  the  plaintiff  had  been  injured 
to  the  extent  of  24-4/.  155,,  the  value  of  the  anchors  and  cables,  for  which 
sum  they  give  their  verdict. 

Wilde  Serjt.  on  the  arguments  urged  for  the  defendants  at  the  trial, 
obtained  a  rule  nisi  to  set  aside  this  verdict  and  enter  a  nonsuit  instead: 
he  referred  to  Jackson  v.  Pesked,  1  M.  &  S.  234,  to  shew  that  to  entitle 
a  party  to  recover  for  an  injury  to  the  reversion,  the  injury  must  be  of 
a  permanent  nature. 

Merewelher  Serjt.  now  shewed  cause.  lie  put  the  injury  to  tlie  re- 
version on  tbe  same  ground  as  at  the  trial;  and  to  shew  that  tlic  plaintiff' 
could  support  the  count  in  trover,  he  cited  Loesclwian  v.  Mackin,  2 
Stark,  N.  P.  C.  311.,  where  the  hirer  of  a  piano,  who  sent  it  to  an  auc- 
tioneer to  be  sold,  was  holden  to  be  guilty  of  a  conversion;  as  also  an 
auctioneer  who  refused  to  deliver  it  up  unless  expences  incurred  were 
first  paid. 

Bkst  C.  J.  I  was  clearly  of  opinion  at  the  trial  that  the  count  in 
trover  could  not  be  sup[)orted,  and  am  still  of  the  same  0|)inion.  Trover 
will  not  lie  for  tbe  plaiiitill",  because,  according  to  the  princijilc  laid  down 
in  Gordon  v.  Ilarpar,  he  had  no  right  to  the  jiossession  of  tlic  goods 
till  the  period  for  which  he  had  let  them,  under  the  charter-|)arty,  ex- 
pired. It  has  been  contended,  indeed,  that  his  right  to  tiie  possession  of 
them  reverted  upon  their  being  removed  from  the  ship  with  which  they 
were  let;  anrl  I  agree  that  this  might  have  been  so,  if  the  removal,  as  in 
the  case  of  Loeschvuiu  v.  JMarUin,  iiad  been  a  wrongful  removal:  but 
here,  though  not  removed  in  the  ordinary  course  of  biisincss,  they  were 
placed  on  llie  defendant's  wh;irf  ready  for  the  use  of  the  ship.  So  like- 
wise, had  they  been  demanded  subs<jf|uently  to  the  sale  of  the  ship,  the 
plaintiff  might,  perhaps,  have  sued  in  trover;  but  they  were  demanded 
two  flays  before  the  sale,  and  at  that  time  it  was  not  certain  that  Frascr 
and  Living  might  not  require  them  again  for  Ihc  use  of  the  ship.     Till 


456  Williams  v.  Protheroe.  H.  T.  1829. 

the  sale  of  the  ship,  at  least,  the  defendants,  who  had  received  the  goods 
from  tliosc  who  had  a  right  to  the  possession,  could  not  be  esteemed 
wroii2;tloers  in  retaining  them  for  the  only  persons  they  knew  in  the 
business. 

With  respect  to  the  alleged  injury  to  the  reversion,  if  the  jury  had 
found  that  the  goods  had  been  injured,  there  might  have  been  some 
ground  for  the  action;  but  the  mere  removal  of  them  was  not  such  an 
injury  as  to  entitle  the  plaintiff  to  sue  in  that  respect.  The  rule  for 
a  nonsuit  must  be  made  absolute. 

BuRROUOH  J.  («)  There  is  no  evidence  of  any  conversion  by  the  de- 
fendants after  the  sale  of  the  ship,  before  which  the  plaintiff  was  not 
entitled  to  the  possession,  so  that  the  count  in  trover  falls  to  the  ground. 
Nor  was  there  any  such  injury  to  the  plaintiff's  reversion  as  to  give 
him  a  right  to  sue  for  damages. 

Gaselee  J.  It  is  clear  no  action  lies  for  the  supposed  injury  to  the 
plaintiff's  reversion;  and,  with  respect  to  the  count  in  trover,  this  case 
differs  essentially  from  that  of  Loeschman  v.  Machin;  because  there 
the  defendant,  an  auctioneer,  received  the  goods  for  an  improper  purpose, 
and  made  himself  a  party  by  insisting  on  retaining  them  until  his  ex- 
penses were  paid.  Here,  when  the  goods  were  delivered  to  the  defen- 
dants. Eraser  and  Living  had  the  entire  controul  over  them;  so  that, 
unless  it  could  be  shown  that  they  had  improper  intentions  as  against 
the  plaintiff,  their  right  to  place  them  with  the  defendants  could  not  be 
disputed.  If  Eraser  and  Living  had  paid  the  demand  in  the  admiralty 
court,  as  they  might  have  done,  the  goods  were  theirs  for  the  time  men- 
tioned in  the  charter  party.  At  all  events  the  plaintiff  had  no  title  to 
the  possession  of  them  till  the  ship  was  sold. 

Rule  absolute. 
(a)  Park  J.  was  absent,  being  unwell. 


(IN  THE  EXCHEQUER  CHAMBER.) 

WILLIAMS  v.  PROTHEROE.— p.  309. 

An  agreement  between  the  seller  and  purchaser  of  an  estate,  that  the  purchaser, 
bearing  the  expense  of  certain  suits  commenced  by  the  seller  against  an  occu- 
pier for  arrears  of  rent,  should  have  the  rent  to  be  so  recovered,  and  any  sum 
that  could  be  recovered  for  dilapidations,  and  that  the  purchaser,  bearing  the 
expenses,  might  use  the  seller's  name  in  actions  he  might  think  fit  to  commence 
against  the  occupier  for  arrears  of  rent  or  dilapidations,  is  not  void,  as  savour- 
ing of  champerty. 

Error  from  the  Court  of  King's  Bench.  The  declaration  stated  that, 
whereas  on  the  1 4th  day  of  December,  in  the  year  1823,  at  Chepstow, 
in  the  county  of  JMonmouth,  by  a  certain  agreement  then  and  there  made 
between  the  said  Edmund  Williams,  the  defendant,  of  the  one  part,  and 
the  said  Thomas  Protheroe,  the  plaintiff,  of  the  other  part,  the  date 
whereof  was  the  day  and  year  aforesaid,  the  said  Edmund  for  himself, 
his  heirs,  executory,  and  administrators,  in  consideration  of  the  sum  of 
1300/.  to  be  paid  to  him  or  them,  on  the  2d  day  of  Eebruary  then  next 
ensuing  the  date  thereof,  by  the  said  Thomas,  did  thereby  agree  with 
the  said  Thomas,  his  heirs  and  assigns,  to  sell  and  convey  to  him  the 
said  Thomas,  his  heirs  and  assigns  for  ever,  on  the  said  2d  day  of  Feb- 
ruary then  next,  a  certain  freehold  messuage  or  dwelling-house,  and  ccr- 


5  Bingham,  309.  457 

tain  customary  messuages,  lands,  &c.  in  the  said  agreement  particularly 
mentioned  and  described,  and  the  said  Thomas  for  himself,  his  heirs, 
executors,  and  administrators,  did  thereby  agree  with  the  said  Edmund, 
his  heirs,  executors,  and  administrators,  to  purchase  the  said  freehold  and 
customary  messuages,  lands  and  hereditaments  thereinbefore  mentioned 
and  described,  and  to  pay  the  said  Edmund,  his  executors  and  adminis- 
trators, for  the  same,  the  sum  of  1300/.  on  the  said  2d  day  of  February 
then  next,  on  having  the  same  conveyed  and  surrendered  to  him  the 
said  Thomas,  his  heirs  and  assigns,  by  the  said  Edmund  or  his  heirs, — 
and  it  was  further  agreed  that  the  said  Thomas  should  bear  all  the  ex- 
pense, costs,  and  charges  of  the  conveyance  and  surrender  to  him  of  the 
said  freehold  and  customary  hereditaments  and  premises,  and  of  any 
fines,  recoveries,  or  other  assurances  necessary  to  convey  and  surrender 
the  same  respectively,  and  it  was  further  agreed  by  and  between  the  said 
parties  thereto,  that  the  said  Edmund,  his  heirs,  executors,  and  adminis- 
trators, should  receive  the  rents  and  pay  all  outgoings,^in  respect  of  the 
said  freehold  hereditaments,  up  to  the  said  2d  day  of  February  then 
next;  and,  after  reciting  that  proceedings,  both  at  law  and  in  equity, 
were  then  pending  between  the  said  Edmund  and  Sir  Henry  Protheroe, 
in  which  proceedings  at  law  the  said  Edmund  was  plaintiff,  and  sought 
to  recover  from  the  said  Sir  H.  Protheroe  six  years'  rent,  at  SO/,  per 
annum,  due  the  2d  day  of  February  then  last,  for  and  in  respect  of  the 
said  customary  hereditaments  and  premises,  under  and  by  virtue  of  a 
certain  agreement  made  between  the  said  Edmund  and  the  said  Sir  H. 
Protheroe,  it  was  by  the  said  agreement,  further  agreed  and  declared  by 
and  between  the  said  parties  thereto,  that  the  said  Thomas,  his  heirs, 
executors,  and  administrators,  should  have  and  receive  the  said  arrears 
of  rent  so  claimed  to  be  due  from  the  said  Sir  H.  Protheroe,  for  his  and 
their  own  use  and  benefit,  and  also  the  said  rent  due  from  the  said  Sir 
H.  Protheroe,  or  to  become  due  for  the  current  year,  ending  on  the  2d 
day  of  February  then  next;  and,  also,  that  the  said  Thomas,  his  heirs, 
executors,  and  administrators,  sliould  have  and  be  entitled  to  all  sums  of 
money  that  could  be  recovered  from  the  said  Sir  H.  Protheroe,  for  and 
in  respect  of  dilapidations  and  wants  of  repair  of  and  in  the  said  custo- 
mary hereditaments  and  j^remises;  and  it  was  thereby  further  agreed, 
that  the  said  Thomas,  his  heirs,  executors,  and  administrators,  should 
be  at  full  liberty  to  use  the  name  or  names  of  the  said  Echnund,  his 
heirs,  executors,  and  administrators,  in  tlie  proceedings  at  law  and  in 
equity  then  pending  between  the  said  Edmund  and  the  said  Sir  II.  Pro- 
theroe; and,  also,  in  any  other  action  or  actions,  suit  or  suits,  which  he, 
the  said  Thomas,  his  heirs,  executors,  and  administrators,  should  think 
proper  to  commence  and  prosecute  against  the  said  Sir  11.  Protheroe 
for  the  recovery  of  the  said  arrears  of  rent,  or  of  the  current  year's  rent, 
or  for  diIa|)idations,  or  wants  of  repair  of  and  in  the  said  customary  he- 
reditaments and  premises;  and  it  was  thf;reby  further  agreed,  that  the 
said  Thomas  should  bear,  pay,  and  discharge  the  costs  ol'  the  said  Ed- 
mund in  the  proceedings  then  pfndinjr,  and  indemnify  him,  the  said  Va]. 
mund,  his  heirs,  executors,  and  administrators,  of,  from,  and  airainst  all 
costs  and  charges  of  any  future  proceedings  that  might  be  had  by  the 
said  Thomas,  in  the  name  of  the  said  Edmund,  his  heirs,  executors,  and 
administrators,  against  the  said  Sir  H.  Protheroe;  as  by  the  said  agree- 
ment, reference  being  thereunto  had,  fully  apjicars;  and  the  said  agree- 
ment l)cing  made  as  aforesaid,  afterwards,  to  \\'\\,  on,  iicc,  at,  &c.,  it  was, 
VOL.  XV.  3b 


458  Williams  v.  Puotheroe.  H.  T.  1829. 

at  the  special  instance  and  request  of  the  said  Edmund,  agreed  by  and 
between  the  said  Thomas  and  tlie  said  Edmund,  that  the  price  or  money 
to  be  paid  by  tlie  said  Thomas  to  the  said  Edmund  for  the  said  freehold 
estate  and  tenement  in  tiie  said  articles  of  agreement  first  mentioned, 
sliould  be  a  certain  sum  of  money,  to  wit,  the  sum  of  500/.,  part  of  the 
said  sum  of  1300/.,  and  that  tlic  price  or  sum  to  be  paid  by  the  said  Tho- 
mas to  the  said  Edmund,  for  the  said  customary  tenements  and  premises 
in  the  said  agreement  also  mentioned,  should  be  the  residue  of  the  said 
sum  of  1300/.,  to  wit,  the  sum  of  800/.,  subject  to  the  terms  in  the  said 
agreement  specified;  and  thereupon,  afterwards,  to  wit,  on,  &c.,  at,  &c., 
in  consideration  thereof,  and  that  the  said  Thomas,  at  the  like  special  in- 
stance and  request  of  the  said  Edmund,  had  then  and  there  undertaken 
and  faithfully  promised  the  said  Edmund,  to  perform  and  fulfil  all  things 
in  the  said  agreement  contained,  on  his,  the  said  Thomas's,  part  to  be 
performed  and  fulfilled  as  such  purchaser  as  aforesaid,  he,  the  said  Ed- 
mund, undertook,  and  then  and  there  faithfully  promised  the  said  Thomas, 
to  perform  and  fulfil  all  things  in  the  said  agreement  contained,  on  his,  the 
said  Edmund's  part  and  behalf  to  be  performed  and  fulfilled  as  such  ven- 
dor as  aforesaid;  and  although  the  said  Edmund,  in  part  performance 
of  the  said  agreement,  and  of  his  said  promise  and  undertaking,  did  after- 
wards, to  wit,  on,  &c.,  at,  &c.,  sell  and  convey  the  said  freehold  tene- 
ments and  premises  in  the  said  agreement  first  mentioned  to  the  said 
Thomas,  and  his  heirs  and  assigns,  at  and  for  the  said  sum  of  500/.,  and 
the  said  Thomas  then  and  there  paid  the  sum  of  500/.  to  the  said  Ed- 
mund, upon  the  terms  aforesaid;  and  although  the  said  Thomas  was  after- 
wards, to  wit,  on,  &c.,  and  from  thence  hitherto  ready  and  willing  to 
accept,  receive,  and  take  of  and  from  the  said  Edmund,  a  surrender  to 
him,  the  said  Thomas,  of  the  said  customary  tenements  and  premises  in 
the  said  agreement  mentioned,  at  and  for  the  said  sum  of  800/.,  upon  the 
terms  aforesaid,  and  to  bear  all  the  expenses,  costs,  and  charges  of  such 
surrender,  and  all  necessary  assurances  in  that  behalf,  and  to  pay  the  said 
sum  of  800/.,  and  complete  the  said  purchase  on  his  part  and  behalf  in 
all  respects  upon  the  terms  aforesaid,  lo  wit,  at,  &c. ;  and  although  the 
said  Thomas  afterwards,  to  wit,  on  &c. ,  and  often  times  afterward,  offered 
to  the  said  Edmumd  to  complete  the  said  purchase  of  the  said  customary 
tenements  and  premises,  with  the  appurtenances,  upon  the  terms  afore- 
said, and  requested  the  said  Edmund  to  sell  and  surrender  to  him,  the 
said  Thomas,  the  said  customary  tenements  and  premises,  upon  the 
terms  aforesaid,  to  wit,  at,  &c. ,  yet  the  said  Edmund,  not  regarding  the 
said  agreement,  nor  his  said  promise  and  undertaking,  but  contriving, 
&:c.,  did  not,  nor  would,  on  the  said  2d  day  of  February,  in  the  year  last 
aforesaid,  or  at  any  other  time,  surrender  or  convey  to  the  said  Thomas 
the  said  customnry  tenements  and 'premises  in  the  said  agreement  in  that 
behalf  mentioned,  or  any  part  thereof,  upon  the  terms  aforesaid,  but  the 
said  Edmund  wrongfully  neglected  and  refused  ever  to  surrender  the 
said  customary  tenements  and  premises  to  the  said  Thomas,  according  to 
the  said  agreement,  and  wrongfully  discharged  the  said  Thomas  from 
any  further  performance  by  him  of  the  said  agreement  on  his  part,  con- 
trary to  the  agreement,  and  the  said  promise  and  undertaking  of  the  said 
Edmund,  to  wit,  at,  &.c. 

Then  followed  a  statement  of  special  damage. 

There  were  several  other  counts.  A  general  verdict  was  given  for  the 
plainlitf  below,  upon  which  final  judgment  was  entered  up,  without  op- 
position in  the  court  below. 


5  Bingham,  309.  459 

Curwood  for  the  plalntiflf  in  error.  The  first  count  discloses  an  illegal 
agreement,  and  the  verdict  and  damages  being  general,  the  judgment 
below  cannot  stand.  Holt  v.  Scholejield,  6  T.  R.  691.  Chesman  v. 
Nainbi/,  2  Ld.  Raym.  1459.  Nortoii  v.  Simms,  Hob.  14.  1  IVms. 
Saund.  66  a.  n,  (1). 

The  Court  stopped  the  counsel  for  the  defendant  in  error,  and  holding 
that  there  was  no  champerty  in  an  agreement  to  enable  the  bona  fide 
purchaser  of  an  estate  to  recover  for  rent  due,  or  injuries  done  to  it  pre- 
viously to  the  purchase,  more  especially  where  such  purchaser  was  not 
an  officer  of  the  king,  the  judgment  of  the  court  below  was 

Affirmed. 


BUSHNELL  and  Others  v.  LEVI.— p.  315. 

An  officer  of  the  sheriff  of  Middlesex,  who  resided  and  carried  on  his  business  in 

Middlesex,  but  who  had  also  an  office  in  London, 
Held,  "to  seek  his  livelihood  in  London,"  within  the  meaning  of  the  London  court 

of  conscience  act. 


ARNOLD,  Clerk,  and  Others,  v.  The  Bishop  of  BATH  and  WELLS, 
LEEVES,  and  DAVIES.— p.  316. 

1.  A  bishop's  register  is  evidence  of  the  facts  stated  in  it. 

2.  An  allegation  of  a  custom  in  parishioners  to  elect  a  curate  is  not  supported  by- 
proof  of  such  a  custom  in  parishioners  paying  church  rates. 

3.  Semble,  an  ecclesiastical  custom  (which  is  not  immemorial)  will  not,  though 
acted  on  for  a  long  time,  deprive  a  I'cctor  of  his  common  law  right  to  appoint  his 
curate. 


DOE  dem.  DAVIES  v.  CREED. 
DOE  dem.  DAVIES  and  CHEESE  v.  CR£:ED.— p.  327. 

1.  Where  two  clcgits  arc  issued  the  same  day  upon  judgments  signed  in  the  same 
term,  tlie  shcrift'may  cxteiul  on  each  an  entire  moiety  of  tlic  defcnduiit's  land, 
although  the  judgments  arc  at  the  suit  of  different  plaintiffs,  and  the  iufpiisition 
on  the  second  elegit  recites,  tliat  a  moiety  lias  been  extended  on  the  first. 

2.  Where  a  party  defends  an  ejectment  as  Jandlfird,  and  tlie  occupiers  of  the  pre- 
mises have  suffered  judgment  Ijy  default,  he  cannot  ol)joct  that  the  occupiers 
have  not  received  notice  to  quit  from  tiie  lessor  of  the  plaintiff. 

The  lessors  of  the  plaintiff  in  these  two.  ejectmcnls,  had  obtained  two 
several  judgments  in  ih'j  sin-e  term  against  one  ('hinn;  upon  which  judg- 
ments they  sued  out  two  writs  of  elegit,  tested  the  same  day  atul  same 
term,  and  delivered  them  to  the  sheriff  together,  to  be  executed. 

The  inrpn'sitions  on  both  were  taken,  and  dated  31st  of  May  1825. 

Theinrpiisitionon  the  first  elegit,  after  finding  the  properly  that  Chinn 
was  seised  of  at  the  time  of  the  judgment,  and  the  persons  by  whom  it 
was  occuj)iefl,  and  setting  out  a  moiety,  slate  1  the  delivery  of  such 
moiety  to  Davics  in  the  usual  way. 

The  inquisition  on  the  second,  after  findi'igCliinn  to  be  seised  of  the 
same  property  in  the  bands  of  the  same  ocmpiers,  proceeded  as  follows: 
—  "A  moiety  of  all  which  said  hercditamchts  and  premises  hath  been 
this  day  extended  by  me,  the  said  sheriff,  in  a  certain  other  action  ajrainst 


460  Doe  d.  Davies  v.  Cueed.  H.  T.  1829. 

the  said  E.  Cliinn,  at  the  suit  of  J.  Davies."  It  was  then  found  that  cer- 
tain jjortions  of  the  premises  (there  described)  were  a  true  and  equal 
moiety  of  the  said  lands  and  tenements  of  Chinn;  and  the  delivery  of 
such  moiety  to  Davies  and  Cheese  was  averred  in  the  usual  way. 

The  lessors  of  the  plaintift' thereupon  commenced  the  above  actions,  to 
obtain  possession  of  the  jiremises. 

The  defendant,  who  was  not  in  occupation  of  any  of  the  premises,  but 
who  claimed  them  under  a  conveyance  from  Chinn,  was  by  rule  of  Court 
joined  with  the  occupiers  to  defend  as  landlord;  and  by  the  terms  of  the 
rule,  in  case  the  occupiers  should  neglect  to  appear,  the  defendant  might 
appear  by  himself  and  defend  his  title  to  the  premises,  he  consenting  to 
enter  into  the  like  rule  as  the  occupiers  in  case  they  had  appeared  ;  the 
plaintiff  to  be  at  liberty  in  such  case  to  sign  judgment  against  the  casual 
ejector,  but  execution  thereon  to  be  stayed  till  the  Court  should  make 
further  order;  the  defendant  to  admit  himself  to  be  in  the  actual  posses- 
sion of  the  premises. 

The  occupiers  did  not  defend,  and  judgment  was  signed  against  them; 
but  they  had  been  in  occupation  previously  to  the  date  of  the  judgments 
on  which  the  elcgits  had  issued. 

At  the  trial  of  the  causes  before  Gaselee  J.  last  Hereford  summer  as- 
sizes, it  was  among  other  things  objected  on  behalf  of  the  defendant  in 
the  first  ejectment,  that  no  proof  had  been  offered  of  any  notice  to  quit 
given  to  the  occupier,  and  that  without  such  notice  the  lessors  of  the 
plaintiffcould  not  recover.     The  plaintiff  was  thereupon  nonsuited. 

Upon  the  second  ejectment,  evidence  having  been  given  of  a  disclaim- 
er, the  like  objection  could  not  be  made;  but  it  was  urged  that  the  inqui- 
sition on  the  second  elegit  vvas  void,  for  delivering  to  the  lessors  of  the 
plaintiff  the  whole  instead  of  the  half  of  the  second  moiety  of  Chinn's 
property. 

The  learned  Judge,  however,  overruled  the  objection;  and  it  appear- 
ing that  the  alleged  conveyance  from  Chinn  to  the  defendant  was  a  gross 
fraud,  a  verdict  was  found  for  the  plaintiff  on  this  second  ejectment. 

On  the  part  of  the  plaintiff, 

.Andrews  Serjt.  obtained  a  rule  nisi  to  set  aside  the  nonsuit,  and  have 
a  new  trial  in  the  first  cause;  and  on  the  part  of  the  defendant  Ludlow 
Serjt.  obtained  a  rule  nisi  to  set  aside  the  verdict  for  the  plaintiff,  and 
enter  a  nonsuit  in  the  second  cause. 

The  two  rules  were  argued  together. 

.,lndrews  Serjt.  cited  Doe  v.  Williams,  Cowp.  621,  4B.  &A.  196; 
Jl I torney -General  v.  Andrew,  Ifardr.  23;  Hityt  v.  Cogan,  Cro.  Eliz. 
4S2;  Burnham  v.  Pain,  2  Brownl.  97;  Corny ns^  Com.  Dig.  Exec. 
C  14. 

Ludlow  Serjt.  contra,  referred  to  Fitz.  Abr.  Exec.  pi.  137;  Vin.  Abr. 
Exec.  594. 

Best  C.  J.  I  am  clearly  of  opinion,  that  there  is  no  foundation  for 
the  objection  which  has  been  made  to  the  execution  of  the  second  ele- 
git. That  writ  was  given  by  the  statute  of  West.  2,  c.  18,  the  language 
of  which  is,  quod  vicecomes  fieri  faciat  de  terris  et  catallis,  vel  quod 
liberet  omnia  catalla,  exceptis  bohus  et  afris  carucac,  et  medietatem  terrae 
quousque  debitum  fuerit  levatum  per  rationabile  pretium  et  extentum. 
T'ndoubtedly  the  sheriff  is  to  take  only  a  moiety:  but  the  question  is, 
to  what  time  do  the  words  of  the  statute  relate  ?  I  am  of  opinion  they 
relate  to  the  time  of  issuing  the  writ.     The  sheriff  must  take  on  each 


5  BlxNGHAM,  327.  461 

writ  a  moiety  of  the  lands  that  the  defendant  has  at  the  time  of  issuing 
that  writ.  Now  at  the  time  when  these  two  writs  issued,  the  defend- 
ant had  the  whole  of  the  lands  in  question,  and  the  sheriff  was,  there- 
fore, bound  to  take  a  moiety  on  each.  This  is  the  principle  on  which 
all  the  cases  have  proceeded.  Upon  a  writ  issued  subsequently  to  a 
prior  execution,  the  sheriff  can  only  take  the  moiety  of  the  moiety  that 
remains;  but  if,  at  the  time  of  issuing  two  writs,  the  defendant  is  in 
possession  of  the  whole  of  his  land,  the  sheriff  may  take  a  moiety  un- 
der each;  and  there  is  no  difference  in  the  case  whether  the  two  writs 
are  at  the  suit  of  the  same  or  of  separate  parties,  provided  they  are 
tested  at  the  same  time,  and  have  relation  to  the  same  day.  Such  was 
the  case  in  the  present  instance;  and^  therefore,  if  the  sheriff  were  to 
take  under  each  writ  a  moiety  of  what  the  defendant  had  at  the  time 
the  writ  issued,  he  would  take  one  moiety  under  one  writ,  and  the  re- 
maining moiety  under  the  other.  To  this  conclusion  we  must  have 
come,  even  without  the  aid  of  a  decision  on  the  point.  But  the  case 
of  the  ^Attorney-General  v.  Jindreiv  is  an  express  authority  the  same 
way,  and  is  referred  to  by  Comyns  as  such.  This  authority  is  consis- 
tent with  the  writ  and  the  statute;  it  guides  the  way  to  whicli  justice 
would  incline,  and  is  impeached  by  no  conflicting  decision.  The  rule, 
therefore,  which  has  been  obtained  on  the  part  of  the  defendant  must 
be  discharged.  We  will  take  time  to  consider  the  other  point  respect- 
ing the  notice  to  the  tenants. 

Park  J.   and  Burrough  J.   concurred. 

Gaselee  J.  I  have  looked  through  all  the  cases,  and  find  no  dis- 
tinction between  elegits  under  several  judgments  at  the  suit  of  the  same 
plaintiff,  and  elegits  under  judgments  at  the  suit  of  several  plaintiffs. 

It  is  plain,  from  the  case  of  the  Attorney -General  v.  Jlndrew,  that 
upon  two  elegits  of  the  same  term,  at  the  suit  of  the  same  plaintiff,  the 
whole  of  the  defendant's  land  may  be  taken;  and  there  is  no  reason 
why  the  practice  siiould  be  different  where  the  judgments  are  at  the  suit 
of  several  plaintiffs,  provided  they  and  the  writs  be  of  the  same  term. 
However,  independently  of  any  decision,  it  is  clear,  upon  looking  at 
the  statute,  that  the  sheriff  may  extend  under  each  writ  a  moiety  of 
what  the  defendant  was  seised  of  on  the  day  the  writ  issued.  The  rule 
for  settmg  aside  the  verdict  for  the  plaintilf  must,  therefore,  be 

Discliarged. 

On  a  subsequent  day  (Feb.  7.)  Beat  C.  J.  said,  that  the  rule  for  a  new 
trial  in  the  first  cause  must  be  made  absolute. 

Rule  absolute  accordingly. 


TAYLOR  and  Others,  Administratrixes  of  FOLDER,  v.  LYON.— 

p.  333. 

Declaration  amended  by  allowing  plaintiff  to  drclarc.  on  the  same  cause  of  action, 
as  surviving  partners  instead  of  administratrixes. 

This  action,  by  Ann  Taylor  and  Mary  Folder,  as  atlministratrixes  of 
Sarah  P'oldcr,  deceased,  was  rommeneed  17th  Septcini)cr  1^27,  upon 
the  defendant's  acceptance  of  a  bill  of  exchange.  The  letters  of  ad- 
ministration were  dated  \\.\\  December  1S27. 


162  Alcock  v.  Cooke.  H.  T.  1829. 

A  bill  was  filed  by  defendant  in  the  Exchequer,  and  an  injunction 
granted  jMichaelmas  term  1827. 

The  injunction  was  dissolved,  on  the  merits,  at  the  close  of  Trinity 
term  1S28. 

The  declaration  was  entitled  1st  day  of  Michaelmas  term  1827. 

Pleas,  general  issue,  statute  of  limitations,  and  that  plaintiffs  were  not 
administratrixes  at  the  commencement  of  suit. 

JViUle  Serjt.  Ujjon  an  affidavit  that  the  plaintiffs  were  the  surviving 
partners,  as  well  as  administratrixes  of  Sarah  Folder,  and  that  at  the 
commencement  of  the  action  their  attorney  had  inadvertently  supposed 
the  letters  of  administration  to  have  been  then  granted,  moved  to  amend 
the  writ  and  declaration,  by  changing  the  description  of  the  plaintiffs 
from  ''administratrixes"  to  "surviving  partners,"  in  which  character 
the  action  might  be  maintained;  or  to  alter  the  title  of  the  declaration 
from  JMichaelmas  term  1827  to  Hilary  term  1828. 

The  statute  of  limitations  would  have  been  fatal  to  any  nevir  action. 

He  cited  The  Executors  of  the  Duke  of  Marlborough  v.  Widmore, 
2  Str.  890,  where  the  plaintiffs  having  declared  as  executors,  on  a  pro- 
mise to  their  testator,  and  issue  having  been  joined  on  a  plea  of  the  sta- 
tute of  limitations,  the  plaintiffs  were  allowed  to  amend  by  laying  the 
promise  as  made  to  themselves. 

Taddy  and  Spankie  Serjts.  shewed  cause,  referring  to  The  Execu- 
tors of  the  Duke  of  Marlborough  v.  fVidmore,  4  Burr.  2449,  Fitzgibb. 
193;  Green  v.  Rennet,  1  T.  R.  782. 

Best  C.  J.  Questions  for  amendment  are  questions  for  the  discretion  of 
the  Court,  which  on  such  occasions  is  to  be  so  exercised  as  to  do  justice 
between  the  parlies.  The  defendant  does  not  allege  that  he  has  been 
prejudiced  by  the  death  of  any  witness,  and  I  think  the  amendment 
ought  to  be  permitted. 

Park  J,  Amendments  are  now  generally  allowed  at  every  stage  of 
the  pleadings,  for  the  advancement  of  justice.  The  question  usually  is, 
<*  Will  any  injustice  be  done  by  what  is  proposed?"  and  if  not,  the 
amendment  is  allowed.  By  allowing  this  amendment  we  shall  prevent 
expense,  and  confer  a  favour  on  the  defendant,  instead  of  a  disadvantage; 
for  if  he  succeeds,  he  will  obtain  his  costs,  which  he  could  not  have 
done  as  the  declaration  originally  stood. 

BuRROUGH  J.  concurred;  and  on  payment  of  costs  the  rule  was  made 
absolute  as  prayed,  the  defendant  having  leave  to  plead  de  novo. 

Rule  absolute  accordingly. 


WRIGHT  V.  WALES— p.   336. 

Defendant,  as  fenreeve,  having  the  care  of  certain  lands,  over  wliich  the  phiiii- 
tiff  was  making  a  road,  asked  him  by  what  authority  he  acted;  the  plaintiff 
said,  by  autliority  of  the  magistrates,  but  did  not  exhibit  any  warrant,  where- 
upon the  defendant  apprehended  and  took  him  before  a  magistrate  :  Held,  that 
defendant  was  entitled  to  notice  of  action  under  7  &  8  G.  4.  c.  30,  although  the 
plaintiff  was  not  committing  a  malicious  injury. 


ALCOCK  V.  COOKE  and  Another.— p.  340. 
Although  the  Duchy  of  Lancaster  is  held  by  the  king  separately  from  his  crown, 


5  Bingham,  340.  463 

a  grant  of  duchy  property  is  subject  to  the  same  incidents  as  a  grant  from  the 
crown. 
Therefore,  an  immediate  grant  to  A.  in  fee,  under  the  duchy  seal,  of  property 
which  was  in  the  possession  of  B.  under  an  unexpired  lease  from  the  duchy  for 
years,  (such  lease  not  being  recited  in  the  grant)  was  held  void,  notwithstand- 
ing there  had  been  a  user  under  the  grant  from  the  date  of  it  (1631)  to  1760. 


DAVIS  V.  RUSSELL  and  Others— p.  354. 

1,  Defendant,  a  constable,  being  told  by  A.  that  plaintiff  had  robbed  her,  and  the 
information  being  countenanced  by  a  supposed  intercepted  letter  which  was 
shewn  to  him,  apprehended  plaintiff,  a  respectable  inhabitant  of  Cheltenham, 
at  her  lodgings,  and  took  her  from  her  bed  at  night  to  prison. 

The  charge  proving  unfounded,  plaintiff  sued  him  for  the  false  imprison- 
ment; and  the  Judge  having  directed  the  jury  to  consider  whether  the 
foregoing  circumstances  afforded  the  defendant  reasonable  ground  to  suppose 
the  plaintiff  had  committed  a  felony,  and  whether,  in  his  situation,  they  would 
have  acted  as  he  had  done, — Held,  that  this  direction  was  substantially  correct. 

2.  Held  also,  that,  under  the  circumstances,  the  degree  of  coercion  resorted 
to  by  the  defendant,  was  not  excessive. 

Trespass  for  assault  and  false  imprisonment.     Plea,  not  guilty. 

At  the  trial  before  Gasehe  J.  last  Gloucestershire  assizes,  the  plaintiff, 
an  elderly  female,  proved,  that  on  the  27th  of  January  1S27,  between 
ten  and  eleven  at  night,  the  defendants,  without  producing  any  warrant, 
took  her  from  her  bed  at  her  lodgings  in  Cheltenham,  and  conveyed  her 
to  prison,  where  she  remained  till  tbe  next  morning,  when  she  was  car- 
ried before  Mr.  Capper,  a  magistrate,  upon  a  charge  of  theft,  which  was 
ultimately  dismissed. 

The  defence  was,  that,  in  the  month  of  November  preceding,  a  rob- 
bery had  been  committed  in  the  house  of  Ann  Hamerton,  a  young 
milliner  at  Cheltenham,  with  whom  the  plaintiff  at  that  lime  lodged; 
that  upon  that  occasion  the  plaintifl^'s  trunk  had  been  broker,  open,  and 
that  a  10/.  note,  and  many  other  articles,  had  been  taken  out. 

The  plaintiff  shortly  afterwards  went  to  reside  in  the  house  from 
which  the  defendants  took  her. 

On  the  27th  of  .lanuary  following.  Miss  Ilamcrton  showed  the  de- 
fendant, Russell,  the  superintendant  of  the  Cheltenham  police,  a  letter 
addressed  to  tbe  plaintiff  at  Miss  Ilamerlon's  house,  and  bearing  tlie 
Cheltenham  post-mark;  and  alleging,  that  upon  looking  in  at  the  ends, 
she  believed  it  to  contain  some  allusion  to  the  robbery,  induced  Russell 
to  break  it  open. 

The  letter,  which  was  anonymous,  purported  to  come  from  an  ac- 
complice in  the  robbery,  residing  in  i^ondon,  and  demnnded  money  at 
the  hands  of  the  plaintiff,  as  a  joint  perpetrator  of  the  offence. 

Miss  Hamerton  also  told  Russell,  that  four  days  after  the  robbery  a 
letter  had  arrived  for  the  plaintiff  in  the  same  hand-writing,  with  the 
London  post-mark,  and  that  the  plaintiff  had  refused  to  sbow  it;  she  then 
expressed  her  suspicions  of  the  plaintiff  being  concerned  in  the  robbery, 
and  said  she  thought  Russell  nuglit  to  t.'ik(!  her  into  custody. 

This,  after  reading  the  above  letter,  lUissell,  assisted  by  the  other  de- 
fendants, proceeded  to  do;  the  door  vi  the  house  being  opened  to  him 
wben  he  knocked. 

On  cross-examination  it  appeared,  that  on  the  Slh  of  January  preced- 


464  Davis  v.  Russell.  H.  T.  1829. 

ing,  the  plaintilT  having  found,  secreted  under  Miss  Hamerton's  bed  and 
on  her  person,  sundry  of  the  articles  which  had  been  stolen  from  the 
])lainliirs  trunk,  took  JSIiss  llamerton  before  ]\lr.  Capper,  the  magistrate, 
charged  her  with  the  theft,  and  identified  the  articles  found  under  her 
bed,  as  the  articles  which  had  been  stolen  from  the  plaintiff's  trunk. 
The  defendant  was  present  upon  that  occasion.  Mr.  Capper,  however, 
dismissed  the  charge,  (a) 

The  learned  Judge  said,  that  if  the  constable  had  a  complaint  made  to 
him  under  such  circumstances  as  to  induce  him  to  believe  it  true,  he  had 
a  right  to  take  into  custody  the  party  complained  against,  provided  the 
facts  were  such  as  to  warrant  an  apprehension;  and  he  desired  the  jury  to 
consider  whether  the  statement  they  had  heard  satisfied  them,  looking  at 
the  letter  and  the  other  facts,  that  the  constable  had  reasonable  ground 
to  suppose  the  plaintiff  implicated  in  the  felony  with  which  she  had  been 
charged;  and  whether,  standing  in  his  place,  they  would  have  acted  as 
he  had  done. 

A  verdict  having  been  found  for  the  defendants, 

Hussell  Serjt.  moved  for  a  new  trial,  on  the  ground,  first,  that  the 
question,  whether  or  not  the  constable  had  reasonable  and  probable  cause 
for  apprehending  the  plaintiff,  was  a  question  of  law  which  ought  not  to 
have  been  left  to  the  jury;  and,  secondly,  that  the  jury  ought  to  have 
been  directed  to  consider,  whether,  supposing  the  arrest  justifiable,  the 
circumstances  of  the  case  warranted  the  degree  of  coercion  resorted  to 
by  the  defendants.  He  cited  Mure  v.  Kaye,  4  Taunt.  35;  Hilly.  Yates, 
S  Taunt.  1S2;  1  Inst.  52;  Sutton  v.  Johnstone,  1  T.  R.  507;  Reynolds 
V.  Kennedy,  1  Wils.  232;  Tindall  v.  Brown,  1  T.  R.  168;  2  Inst. 
222;  Co.  Lit.  56,  57;  Swinton  v.  Molloy,  1  T.  R.  537;  Beckwithx. 
Philby,  6  B.  &  C.  637;  Wright  v.  Court,  4  B.  &  C.  596;  4  Inst.  177; 
slats,  i  &.  2  Ph.  &  M.  c.  13.  and  2  &  3  Ph.  &  M.  c.  10;  Samuel  v.  Payne, 
Dougl.  359;  2  Hale,  91;  1  Hale,  567.  5S9;  Ledwith  v.  Catchpole, 
Cald.  291.  23  G.  3;  a  case  in  the  Year-book,  in  Hilary  term  7  Hen.  4. 
35.  pi.  3. 

A  rule  nisi  having  been  granted, 

Ludlow  Scrjt.  shewed  cause. 

Russell,  in  support  of  his  rule,  relied  on  the  authorities  before  cited. 

Best  C.  J.  This  was  an  action  for  false  imprisonment.  The  defend- 
ant, as  a  constable,  gave  in  evidence,  under  the  general  issue,  circum- 
stances to  shew  that  in  the  execution  of  his  duty  he  had  a  probable 
cause  for  apprehending  and  imprisoning  the  plaintiff.  The  jury  having 
found  a  verdict  in  his  favor,  a  new  trial  has  been  moved  for,  on  the 
ground  that  the  jury  were  misdirected;  first,  in  the  circumstance  that 
they  were  left  to  consider  whether  the  defendant  had  probable  cause  for 
arresting  the  plaintiff;  and,  secondly,  in  the  circumstance  that  they  were 
not  requested  to  consider  whether  or  not  the  defendant  had  resorted  to 
a  degree  of  coercion  unnecessary  for  the  occasion. 

(a)  Miss  Hamcrton  was,  on  the  same  evidence,  tried  and  convicted  for  the  rob- 
bery at  the  ensuine;  Gloucester  Spring  assizes;  being  then  sentenced  to  seven 
years  transportation,  she  committed  suicide  the  next  day.  Upon  that  trial,  the 
anonymous  letter,  on  the  credit  of  which  Russell  had  apprehended  the  plaintiff, 
was  proved  to  have  been  written  by  Hamcrton. 

On  the  proof  supposed  to  be  afforded  by  that  letter,  the  plaintiff,  when  charged 
before  Mr.  Capper  on  the  28th  of  Janviary,  had  been  committed  to  prison  for 
fifteen  days,  for  further  examination;  at  the  expiration  of  that  cimc,  for  five  days 
more,  and  then  dismissed.  ' 


5  Bingham,  354.  465 

The  question  of  probable  cause  is,  no  doubt,  a  question  lor  the  Jutlge; 
but  the  jury  must  lirst  find  the  facts  which  are  suj)posed  to  constitute  the 
probable  cause;  and  it  is  sometimes  difficult  to  draw  the  line  between 
the  law  and  the  fact.  It  has  been  argued  in  effect,  that  if  the  jury  had 
intimated  their  belief  of  the  facts,  the  plaintiff  ought  to  have  been  non- 
suited. But  on  these  facts  the  Judge  could  not  properly  have  directed 
a  nonsuit.  It  was  necessary  to  leave  to  the  jury,  whether,  admitting  the 
facts,  the  defendant  acted  honestly;  for  if  he  did  not, — if  he  acted  with- 
out giving  credit  to  the  statement  made  to  him  by  Ilamerton, — the 
verdict  ought  to  have  been  against  him,  and  with  heavy  damages.  But 
the  learned  Judge  tells  them,  "  If  you  believe  the  facts,  and  thence  infer 
that  the  defendant  was  acting  honestly,  you  must  find  for  him,"  This 
was  saying  in  substance,  that,  in  his  opinion,  the  fads,  if  believed,  furn- 
ished a  probable  cause  for  the  defendant's  conduct.  But  if  the  direction 
to  the  jury  were,  on  the  whole,  substantially  right,  a  mere  inaccuracy 
of  expression  will  not  render  it  necessary  to  have  recourse  to  a  new  trial. 
This  direction  was  substantially  riglit.  It  was  for  the  jury  to  say  whether 
they  believed  the  facts;  and,  if  they  believed  them,  whether  the  defend- 
ant were  acting  honestly;  in  other  words,  whether  the  jury,  under  tlie 
same  circumstances,  would  have  done  as  he  did.  It  has  been  further 
contended,  that  without  a  warrant  from  a  magistrate  a  constable  has  no 
right  to  apprehend  upon  suspicion,  unless  there  be  danger  of  escape  if 
he  forbear  to  apprehend.  The  law,  however,  is  not  so.  For  though  a 
private  individual  cannot  arrest  upon  bare  suspicion,  a  constable  ma3^ 
This  has  been  decided  in  so  many  cases,  that  it  is  unnecessary  to  refer 
to  them;  and  unless  the  law  were  so,  there  would  be  no  security  for 
person  or  property.  Then,  had  the  constable  in  this  case  reason  to  sus- 
pect that  a  felony  had  been  committed?  Hamerton  told  him  that  the 
plaintiff  had  robbed  her,  and  that  her  suspicions  were  confirmed  by  an 
anon^-mous  letter  which  had  fallen  into  her  hands.  Tiie  constable  had 
no  means  of  knowing  that  this  letter  had  been  written  by  Hamerton 
herself,  and  if  he  believed  it  genuine,  it  afforded  aniple  ground  for  sus- 
])icion.  That  has  all  I)cen  left  to  the  jur}',  and  they  have  come  to  the. 
same  conclusion.  A  passage  has  been  referred  to  in  1  Inst.  177.  to  shew 
that  a  constable  cannot  arrest  upon  suspicion;  but  the  words  are,  "  bare 
surmise,"  which  is  a  very  different  thing.  "One  or  more  justices  of 
peace  cannot  make  a  warrant  u|)on  a  bare  surmise  to  break  any  man's 
house  to  search  for  a  felon,  or  for  stolen  goods;  for  they  being  created 
by  act  of  parliament,  have  no  such  authority  granted  to  them  by  any  act  '^ 
of  j)arliamcnf ;  and  it  should  be  full  of  inconvenience  that  it  should  be  in 
the  power  of  any  justice  of  peace,  being  a  judge  of  record,  upon  a  bare* 
suggestion  to  break  the  house  of  any  person,  of  what  stale,  (piality,  or 
degree  soever,  and  at  what  time  soever,  either  in  the  day  or  niglil,  upon 
such  surmises." 

And  the  authority  of  link,  even  in  the  passage  cited,  is  against  the 
position  contended  for.  "A  constable  may,  ex  ollicio,  arrest  a  breaker 
of  the  peace  in  his  view,  and  krep  him  in  his  house,  or  in  the  stocks,  till 
he  can  bring  him  before  a  justice  of  |)eace." — "  If  a  felony  be  commit- 
ted, and  A.  acf|uaints  him  that  B.  did  it,  the  constable  may  take  him 
and  imprison  him,  at  least  till  he  can  bring  him  bcjfore  some  justice  of 
peace.  I'ut  if  there  be  only  an  affray,  and  not  in  the  view  of  the  constable, 
it  hath  been  held  he  cannot  arrest  him  without  a  warrant  from  llie  just- 

VOL.    XV.  59 


4C)G  JJavis  v.  Russkll,   H.  T.  1829. 

ice;  but  it  seems  he  may,  to  bring  the  offender  before  a  justice,  though 
not  compellable." 

Then,  Samuel  v.  Payne  is  an  express  decision  that  a  constable  may 
justify  an  arrest  upon  reasonable  suspicion. 

It  has  further  been  insisted,  that,  at  all  events,  an  undue  degree  of  co- 
ercion was  resorted  to;  that  the  plaintiff  ought  not  to  have  been  appre- 
hended at  night,  or  compelled  to  go  from  her  home.  But  v^'hat  was  the 
constable  to  do  ?  Was  he  to  go  home  ?  or  to  watch  the  plaintiff's  house 
all  night?  Hamerton  had  required  his  assistance,  and  if  the  plaintiff 
had  escaped  he  would  have  been  responsible.  A  person  in  his  situation 
lias  little  discretion  left  to  him;  if  a  charge  be  made  he  must  act;  and 
the  detendant  would  not  have  been  justified  if,  after  the  information  he 
had  received,  he  had  not  gone  that  night  to  the  plaintiff's  house:  he  used 
no  unnecessary  violence;  he  did  not  break  the  door:  and  he  was  bound 
to  make  the  arrest.  The  case  has  been  ably  argued,  and  is  of  great  im- 
portance. It  is  important  that  constables  should  not  abuse  their  authority, 
and  equally  so  that  they  should  not  be  discouraged  in  the  due  discharge 
of  their  duty.  We  cannot  uphold  the  notion  that  a  constable  is  not  per- 
mitted to  go  into  a  house  at  night  to  apprehend  a  person  suspected. 
Severity,  indeed,  is  not  necessary,  and  parties  charged  should  be  treated 
according  to  their  condition;  but  it  is  necessary  that  the  constable  should 
have  their  persons  secure.  The  sufferings  of  the  plaintiff  in  this  cause 
are  indeed  to  be  regretted;  but  they  have  been  occasioned  by  the  wicked- 
ness of  Hamerton,  of  whom  the  defendant  was  ihe  innocent  instrument, 
and  therefore  the  rule  for  a  new  trial  must  be  discharged. 

Park  J.  I  do  not  impeach  any  of  the  cases  that  have  been  decided 
on  this  subject,  nor  had  I  ever  a  doubt  that  it  is  the  province  of  the  judge 
on  such  occasions  to  determine  the  point  of  law;  but  as  that  must  be 
compounded  of  the  facts,  and  as  the  jury  must  decide  on  them,  my  prac- 
tice has  been  to  say,  <'  You  are  to  tell  me  w^hether  you  believe  the  facts 
stated  on  the  part  of  the  defendant,  and  if  you  do,  I  am  of  opinion  that 
they  amount  to  a  reasonable  and  probable  cause  for  the  step  he  has 
taken."  I  do  not  direct  a  nonsuit,  because  the  fact  is  so  closely  con- 
nected with  the  law.  The  direction  of  the  learned  Judge  in  this  case  is 
conformable  to  that  mode  of  proceeding,  and  is  substantially  the  same 
as  in  Hill  v.  Yates,  and  Beckwith  v.  Philby.  ,  Litiledale  J.  in  that 
case  directed  the  jury  to  find  a  verdict  for  the  defendants,  if  they  thought 
upon  the  whole  evidence  that  the  defendants  had  reasonable  cause  for 
suspecting  the  plaintiff  of  felony;  and  Lord  Tenterden  said,  '<  Whether 
there  was  any  reasonable  cause  for  suspecting  that  the  plaintiff  had  com- 
mitted a  felony,  or  was  about  to  commit  one,  or  whether  he  had  been 
detained  in  custody  an  unreasonable  time,  were  questions  of  fact  for 
the  jury." — ''There  is  this  distinction  between  a  private  individual 
and  a  constable:  in  order  to  justify  the  former  in  causing  the  impris- 
onment of  a  person,  he  must  not  only  make  out  a  reasonable  ground 
of  suspicion,  but  must  prove  that  a  felony  has  actually  been  committed; 
whereas  a  constable,  having  reasonable  ground  to  suspect  that  a  felony- 
has  been  committed,  is  authorized  to  detain  the  party  suspected,  until 
enquiry  can  be  made  by  the  proper  authority."  The  direction  of  the 
learned  Judge  in  the  present  case  was  tantamount  to  this:  <'  If  you  think 
the  defendant  acted  bona  fide,  I  am  of  opinion  he  had  probable  cause  for 
the  course  he  pursued." 

It  has  also  been  objected,  that  there  was  no  necessity  for  apprehending 


5  Bingham,  654.  467 

the  plaintiff  at  night,  and  a  case  has  been  put  of  the  apprehension  of  a 
judge  at  his  own  house.  But  was  the  constable  to  stay  m  the  street  all 
night,  after  the  information  he  had  received;  or  in  the  plaintiff's  room  ? 
No.  And  the  very  circumstance  of  the  magistrate's  committing  the 
plaintiff  the  next  day  affords  a  presumption  that  the  defendant  was  act- 
ing bona  fide.  The  circumstance  of  a  felony  having  been  imputed  to 
the  plaintiff  was  a  sufficient  reason  why  the  constable  should  apprehend 
an  escape. 

BuRROUGH  J.  A  constable  has  always  reason  to  apprehend  an  escape 
when  he  receives  information  of  this  nature;  and  if  he  did  not  act  upon 
such  supposition,  there  would  be  no  safety  for  property  in  London.  I 
am  clearly  of  opinion  that  the  defendant  might  have  justified  this  con- 
duct in  a  plea,  stating  that  a  felony  had  been  committed,  and  that  he 
had  been  informed  of  it.  What  liamerton  told  him,  added  to  the  letter 
she  produced,  was  sufficient  to  raise  a  strong  suspicion  in  the  mind  of  a 
constable;  and  such  a  justification  could  not  have  been  got  rid  of  but  by 
denying  the  facts  alleged.  Here  they  were  true,  and  if  the  constable 
had  ground  to  believe  them,  that  was  suflicient  for  him.  Notliing  but 
the  subsequent  conviction  of  Hamerton  has  raised  the  difficulty  in  this 
case;  but  the  question  is,  on  what  grounds  and  motives  the  constable 
acted  at  the  time.  He  had  reasonable  ground  to  believe  the  charge,  and 
it  was  his  duty  to  apprehend  tlie  plaintiff;  that  being  so,  the  learned 
Judge's  direction  was  right  in  substance. 

Gaselee  J.  On  a  review  of  all  that  has  been  said,  I  do  not  alter  the 
opinion  I  had  formed  at  the  trial.  I  said  to  the  jury  in  substance  what 
has  been  stated;  but  I  never  meant  to  leave  to  them  the  question  of  legal 
probable  cause;  for  I  had  the  case  of  Bcckwitfi  w.Pkilby  before  me, 
and  I  was  requested  to  nonsuit  the  plaintifi'.  I  could  not  do  so  upon 
the  plaintiff's  case,  though,  in  similar  causes,  I  have  occasionally  done 
so,  after  hearing  the  defendant's  case;  but  when  there  is  any  doubt  as  to 
the  facts,  they  must  be  found  by  the  jury.  By  leaving  them  to  the  jury 
in  this  case,  and  also  whether  the  defendant  acted  bona  fide,  I  intimat- 
tcd,  in  effect,  that  if  they  were  satisfied  on  that  head,  the  defendant 
stood  excused. 

As  to  the  point  about  the  probability  of  escape,  none  of  the  authorities 
cited  go  the  length  of  saying  that  the  constable  cannot  detain,  except 
where  he  has  reason  to  appreiiend  an  escape.  The  rule,  therefore  must 
be 

Discharged. 


nUDSOiN  v.  REVETT.— p.  3GS. 

1.  The  dcfc:iul;int  executed  a  deed,  eoiivcyiui;  his  proi)crly  t(i  trustees  tusell  for 
tlic  In-iiefiLof  creditors,  tlie  j)articulars  of  \vhi;sc  deinaiid  were  stateil  in  tlie 
deed;  a  l)laiik  was  left  for  one  of  tlic  principal del)ts,  the  exact  anionnt  of  which, 
beiii);  snliserpiently  ascertained,  was  inserted  in  the  Ijlank.  the  next  day,  in  the 
defendatit's]>rescnce,  and  with  his  assent.  lie  aft(  rwanls  recopiized  the  deed  as 
valid  in  varions  ways,])aiticnlarly  Ijy  bein)^  ])resent  when  it  was  executed  by  his 
wife,  and  by  joinini^  her  in  a  fine  to  enure  to  the  uses  of  tlie  deed  :  Held,  that 
the  deed  was  valicl,  nolwithstundinj;  tlie  lillini;  up  of  the  blank  after  execution. 

2.  The  attorney  who  had  prepared  the  deed,  oii  the  retainer  of  the  tnistees,  was 
held  ii  competent  witness  in  an  issiu*  directed  by  !!ie  Court,  to  try  its  validity, 
although  one  of  the  trusts  was  to  defray  the  char,,!--,  of  preparini;  the  deed,  and 
althonph  he  was  defendant  in  atiolhci  action,  hi">  vucccbb  in  wliich  depended  nn 
<lie  validity  of  the  deed. 


168  llcijsoN  r.  RiiVEii.   H.  T.  1829. 

At  all  events,  in  such  an  ii>sin.',  the  ilcfciuhuit  was  held  not  entitled  to  a  new  trial, 
on  account  of  the  admission  ol'  the  testimony  of  such  witness,  justice  having 
been  done. 

This  was  an  issue  directed  by  the  Court  of  Common  Pleas,  to  try 
wliclhcr  certain  deeds  of  lease  and  release,  and  an  accompanying  deed 
of  trust,  were  the  deeds  of  the  defendant,  and  if  so,  whether  they  had 
been  obtained  by  fraud,  covm,  or  misrepresentation. 

The  lease  and  release  bore  date  the  25lh  and  2Gth  of  November  1825 
respectively;  the  deed  of  trust  the  latter  day;  and  the  object  of  the  deeds 
was  to  efl'cct  a  conveyance  of  lievett's  property  to  Hudson,  in  trust  to 
raise  money  by  sale  of  it  for  the  payment  of  Revett's  debts,  with  a  trust, 
as  to  any  residue,  in  favour  of  Revett;  and  "  in  the  first  place,  for  the 
trustee  to  pay  and  defray  the  costs,  charges,  and  expenses  of  all  parties 
thereto  attending  the  preparing,  settling,  completing,  and  executing 
those  presents,  and  the  several  indentures  of  lease  and  release  therein 
referred  to." 

At  the  trial  before  llolroyd  J.  last  Suffolk  Summer  assizes,  Mr. 
ikown,  the  attorney  who  prepared  the  deeds,  and  was  also  a  party  to 
the  deed  of  trust,  stated,  that  on  Monday  the  2Sth  November  1825,  the 
defendant  being  then  a  prisoner  in  the  King's  Bench  prison,  he,  Brown, 
on  the  part  of  the  jjlaintifT  and  other  creditors,  and  acting,  as  he  con- 
ceived, for  all  parties,  went,  accompanied  by  Columbine,  the  attesting 
witness,  to  the  defendant  in  the  prison,  for  the  purpose  of  procuring 
the  execution  of  the  deeds.  That  they  corresponded  exactly  with 
drafts  which  had  before  been  assented  to  and  signed  by  the  defendant; 
that  blanks  were  left  tor  the  amounts  of  tlie  debts  of  various  creditors, 
which  were  then  lilled  up,  with  the  exception  of  the  blank  for  the  debt 
of  one  Mills,  a  creditor;  that  Mills,  who  was  present,  claimed  1G,000/. 
odd:  but  that  the  defendant  shewed  an  account,  reducing  Mills's  debt  to 
14,558/.  85.  S(/.,  and  said  he  iiad  vouchers  by  which  he  could  confirm 
ihe  account.  The  account  was  admitted,  suljject  to  the  production  of 
these  vouchers;  and  it  was  agreed  that  the  blank  for  Mills's  debt  should 
be  filled  up  when  they  were  produced.  The  defendant  and  Mills  then 
executed  the  deed,  leaving  the  blank  to  be  filled  up  as  above  mentioned. 
This  statement  was  confirmed  by  the  attesting  witness,  the  only  other 
person  present.  The  next  day  Brown  and  Mills  attended  the  defendant 
again;  but  Columbine  was  not  present.  The  defendant  produced  the 
vouchers  in  question;  the  balance  was  struck;  Brown  filled  up  the  blanks 
with  the  sum  of  14,858/.  85.  8f/.  and  then  went  away,  taking  with  him 
the  deeds  for  the  purpose  of  procuring  their  execution  by  other  parties. 
The  instrument  at  that  time  had  a  deed-stamp  (not  ad  valorem),  and  no 
new  stamp  was  added.  'J'lie  defendant  left  the  prison  shortly  afterwards, 
and  the  deeds  were  executed  in  his  presence  by  his  wife,  (who  also 
joined  in  a  fine  to  enure  to  the  uses  of  the  trust-deed,)  under  his  sanction, 
when  he  was  at  liberty. 

The  plaintiff,  the  trustee,  did  not  execute  the  trust-deed  till  the  end  of 
ihc  ensuing  December.  Many  letters  were  subsequently  written'  by 
the  defendant,  in  which  he  not  only  treated  the  deeds  as  valid  instru- 
ments, but  ordered  the  occupiers  of  the  property  to  pay  their  rents  to 
Ihe  plaintiff,  and  the  steward  of  the  manor  to  deliver  up  his  books  and 
the  rolls  of  the  manor  to  Tirown.  It  appeared,  further,  that  he  had  told 
one  Chapman  that  he  had  executed  the  deeds,  and  had  gained  lime; — 
also,  tliat  he  had  carjicd  into  eilect  Ihc  fine  that  was  to  pass  his  wife's 


5  Bingham,   368.  469 

Brown  was  ol)Jecteil  to  as  a  witness,  as  having  an  interest  to  support 
the  deed  in  order  to  recover  his  own  charges,  and  as  being  defendant  in 
an  action  of  trespass,  in  which  his  defence  rested  on  a  claim  to  property 
under  this  deed.  See  Revett  v.  Brown,  Ante,  page  345.  But  it 
was  answered,  that  though  by  an  express  clause  in  the  deed  the  trustee 
was  authorized  to  defray  those  charges  out  of  the  property,  he  was  per- 
sonally liable  to  Brown  under  his  retainer:  that  Brown  could  recover 
against  him  only  by  virtue  of  that  retainer,  and  that  the  deed  would  be 
no  evidence  in  support  of  Brown's  claim.  The  learned  Judge  overruled 
the  objection. 

No  evidence  was  offered  on  the  part  of  the  defendant;  but  the  follow- 
ing passage  in  Bull.  N.  P.  p.  267.  was  relied  on:  "  If  there  be  blanks 
left  in  an  obligation  in  places  material,  and  filled  up  afterwards  by  the 
assent  of  parties,  yet  is  the  obligation  void,  for  it  is  not  the  same  con- 
tract that  was  sealed  and  delivered: — as  if  a  bond  were  made  to  C.  with 
a  blank  left  after  for  his  Christian  name  and  for  his  addition,  which  is 
afterwards  filled  up." 

Holroyd  J.  told  the  jury  it  did  not  appear  in  the  passage  cited  that 
the  alteration  was  made  in  the  presence  of  the  party,  but  that,  if  in  such 
a  case  there  was  that  which  amounted  to  a  redelivery,  and  shewed  that 
the  party  meant  the  deed  should  be  acted  on  in  its  altered  state,  the  al- 
teration being  made  in  his  presence  would  amount  to  a  redelivery,  and 
the  deed  would  be  his  in  its  altered  state;  he  referred  to  Goodright  d. 
Carter  v.  Straphan,  Cowp.  201,  where  the  redelivery  by  a  feme  after 
baron's  death,  of  a  deed  delivered  by  her  whilst  covert,  was  held  a  suf- 
ficient confirmation  of  the  deed  to  bind  her  without  re-execution  or  re- 
attestation, — and  said,  that  circumstances  alone  might  be  equivalent  to  a 
redelivery.  Then,  observing  on  the  fact  tliat  the  blank  in  the  present 
case  had,  according  to  a  previous  arrangement,  been  filled  up  in  the  de- 
fendant's presence,  and  with  his  consent,  that  he  had  afterwards  assisted 
at  and  sanctioned  the  execution  of  the  deed  by  iiis  wife,  and  had  acted 
upon  it  as  a  valid  instrument,  he  said,  that  unless  the  jury  disbelieved 
the  evidence,  there  was  abundant  ground  for  their  considering  this  deed 
as  the  deed  of  the  defendant: — of  fraud  or  covin  no  evidence  had  been 
offered. 

The  jury  found  that  the  doeds  were  the  deeds  of  Oie  defendant,  and 
(hat  the  execution  of  them  had  not  been  obtained  by  any  fraud,  covin, 
or  misrepresentation. 

IVildc  Scrjt.  moved  for  a  new  trial,  on  the  ground  that  15rown  ought 
not  to  have  been  admitted  as  a  witness,  and  that  the  deed  was  void, 
having  been  altered  in  a  material  particular  after  its  execution,  without 
any  redelivery.     There  was  also  an  objection  to  the  stamp. 

A  redelivery,  he  conlenderl,  could  oidy  be  implied  wheie  llu^re  was 
no  evidence  to  rebut  the  prcsumj)lion  ;  hero,  the  circumstance  that  the 
deed  was  always  out  of  lievelt's  possession  was  evidence  sullicieiit  to  re- 
but any  such  presumption.  In  (ioodr'vrht  v.  Straphan  the  deed  had 
never  been  executed  at  all  before  the  death  of  the  husband,  for  an  execu- 
tion by  a  feme  covert  was  altogether  void:  here  the  deed  was  once  well 
executed,  and  there  could  be  no  new  execution  actual  or  implied  with- 
out a  new  stamp.  A  rule  nisi  having  been  gratitcd, 

Storks  and  /^(/,s.«7/Sprjts.  shewed  cause.  They  cited  Bull.  N.  V.  207; 
2  Uoll.  All.  2f,*.  (Kaifs;  Inlerliner];  f'o.  II;  Piir(,t's  cann,  27.  Mirkham 
V.  (jonaitorij  Cro.    Kli/..-(i27,   Mnrlduim  v.  Utmaslun)  Moore,  5t7, 


470  Hudson  v.  RiiVETT.  H.  T.  1829. 

Paget  V.  Paget,  2  Chan.  Rep.  410.  cilctl  in  Vin.  Ahr.  Faits(U);  Zouch 
V.  C/(ii/,  2  Lev.  35;  Texira  v.  Evans,  1  Anstr.  228;  Doe  d.  Lewis  v. 
Bingham,  4  B.  &  A.  672;  Matson  v.  Booth,  5  M.  &  S.  223;  Shep- 
herd''s  Touchstone,  50,  and  (TO^  Coke  and  .Another,  Executors,  v.  Brum- 
inell,  2  B.  JNIoore,  495;  Perkins,  s.  154;  Butter  and  Ba/cer^s  case,  3  Rep. 
35  b. ;  Jennings  v.  Bragge,  37  Eliz. ;  Lord  Co/^-e,  in  his  commentary  on 
Lit.  s.  36;  2  Roll.  Abr.  26.  pi.  2;  Goodright  v.  Gregory,  Lloft,  339; 
/)oe  f/ewi.  Garnons  v.  Knight,  5  B.  &  C.  671;  Z^oe  ^e7?2.  Odiarne  v. 
Whitehead,  2  Burr.  704. 

The  Court  relieved  the  learned  Serjeants  from  arguing  the  point  about 
the  stamp,  or  the  admissibility  of  Brown's  testimony. 

/FtWe,  contra,  referred  to  Per/tm5,  ^.  154;  Com.  Dig.  Fait.  (A.  3.); 
Shep.  Touch.  5S;  4  Cruise,  36;  Lord  Cromwell's  case,  2  Rep.  69j  55 
G.  3.  c.  184.  sched.  part  1.  tit.  Mortgage. 

Best  C.  J.  This  was  an  issue  which  the  Court  thought  it  right  to  di- 
rect, for  the  purpose  of  ascertaining  whether  these  deeds  had  been  pro- 
perly executed,  or  were  obtained  by  fraud.  The  jury  have  found  that 
all  the  deeds  were  properly  executed,  and  they  have  negatived  the  fraud. 
An  application  has  been  since  made  to  grant  a  new  trial  on  several 
grounds.  First,  that  a  witness  was  admitted  who  ought  not  to  have  been 
received.  Secondly,  an  objection  has  been  taken  to  the  stamp,  that  the 
lease  and  release  ought  to  have  had  an  ad  valorem  stamp,  and  not  a  mere 
stamp  upon  a  deed  conveying  property  to  be  sold  for  the  benefit  of  credi- 
tors. The  third  objection  is,  that  the  trust  deed  was  a  complete  deed  at 
the  time  the  witness  attested  its  execution  in  the  King's  Bench  prison, 
and  that  the  learned  Judge  ought  not  to  have  left  it  to  the  jury  to  pre- 
sume another  delivery;  that  if  it  was  a  perfectly  executed  deed,  the  altera- 
tions made  subsequently  to  its  execution,  though  with  the  assent  of  all  the 
parties,  render  that  deed  a  nullity;  and  that  if  the  trust  deed  be  a  nullity, 
all  the  other  deeds  are  useless,  because  they  refer  to  this,  and  cannot 
stand  as  a  complete  conveyance  without  it. 

I  am  disposed  to  agree,  though  it  is  not  necessary  to  decide  that  point, 
that  if  the  trust  deed  is  to  fall,  all  the  deeds  will  fall.  .  But  I  am  of 
opinion  that  all  the  deeds  must  stand.  And  that  will  dispose  of  the  ob- 
jection to  the  stamp  act,  because  it  is  admitted,  that  if  the  trust  deed  is 
to  be  incorporated  in  the  assurance,  it  shews  the  intentof  the  parties  was 
to  convey  for  the  benefit  of  creditors  more  than  five,  and  comes  within 
the  exception  of  the  stamp  act.  As  to  tlie  admissibility  of  the  witness,  I 
do  not  think  it  necessary  to  decide  that  Brown  could  not  in  a  court  of  law 
be  considered  as  a  competent  witness,  when  the  learned  Judge,  for  whose 
opinion  I  entertain  the  highest  respect,  thought  it  right  to  receive  him. 
But  let  us  take  it  he  was  not;  ought  we  in  this  case,  who  have  sent  this 
issue  for  the  purpose  of  ascertaining  facts  which  are  to  satisfy  our  minds, 
when  wc  see  that  justice  will  be  done,  and  has  been  done,  whether  that 
witness  spoke  the  truth  or  not, — ought  we  to  send  this  cause  down  again? 
It  is  not  like  the  trial  of  an  action,  where  a  party  perhaps  has  a  right,  if 
a  witness  deposes  to  facts  that  are  material,  and  he  is  not  a  competent 
witness,  to  call  on  the  Court  and  say,  '  I  am  entitled  to  have  that  verdict 
set  aside,  for  it  was  found  on  evidence  which  ought  not  to  have  been 
given.'  That  is  not  our  situation  with  respect  to  this  cause,  because  this 
is  the  Creature  of  our  discretion,  and,  tlicreforc,  we  are  now  to  decide 
whether,  under  all  the  circumstances,  it  would  be  fit  to  send  it  down 
again.    Now,  when  \ve  recollect  that  Chapman  proved  all  that  was  neccs- 


5  Bingham,  368.  471 

sary  to  be  proved  to  sustain  this  verdict;  that  Chapman  is  uncontradict- 
ed;— I  allude  to  the  conversation  with  the  defendant,  when  he  acknow- 
ledged that  he  had  executed  the  deed,  and  that  these  sums  were  engraft- 
ed into  it; — when  we  recollect  that  the  defendant  after  this  wrote  letters 
to  the  different  tenants,  and  in  those  letters  acknowledged  the  execution 
of  the  deed;  can  we  say  it  is  fit  in  such  a  case,  merely  because  some  evi- 
dence was  received  which  ought  not  to  have  been  received,  to  send  this 
question  again  to  the  consideration  of  a  jury? 

This  brings  us,  therefore,  to  the  great  questions  in  this  case.  They 
have  been  divided  into  two.  It  has  been  first  insisted  that  there  was  no 
perfect  execution  of  the  deed  until  the  sum  of  14,858/.  was  written  in  it; 
and  if  there  was  not  a  perfect  execution  of  the  deed  up  to  that  time,  then 
it  was  competent  for  my  Brother  Holroyd  to  refer  it  to  the  jury,  to  con- 
sider whether  they  would  not  presume  an  execution  of  the  deed  after  all 
the  sums  were  written  in  and  it  was  rendered  a  perfect  deed.  I  am  of 
opinion  that  this  is  a  correct  view  of  the  case  ;  and  if  it  is,  it  comes  pre- 
cisely within  the  principle  of  the  case  to  which  my  Brother  Hoh'oydhns 
referred,  of  Doe  d.  Carter  v.  Strophan.  In  that  case  a  deed  had  been 
executed  by  a  married  woman,  and,  as  such,  was  undoubtedly  void. 
After  the  death  of  her  husband,  she,  by  various  acts,  confirmed  this  deed. 
The  Court  of  King's  Bench  decided,  that  by  the  confirmation  of  the 
deed  the  jury  were  warranted  in  presuming  a  re-execution  of  it.  Un- 
doubtedly, in  that  case.  Lord  Mansfield  refers  to  a  passage  in  Perkins, 
where  he  says,  *'  It  is  to  be  known  that  a  deed  cannot  have  and  take  ef- 
fect at  every  delivery  as  a  deed;  for  if  the  first  delivery  takes  effect  the 
second  delivery  is  void;  and  in  case  an  infant  or  a  man  in  prison  makes 
a  deed  and  delivers  the  same  as  his  deed,  and  afterwards  when  the  infant 
comes  to  his  full  age,  or  the  man  in  prison  when  at  large  delivers  the 
same  again  as  his  deed  which  he  delivered  before  as  his  deed,  this  se- 
cond delivery  is  void."  That  brings  us  to  the  question.  Was  there  anv 
perfect  delivery  of  this  deed  antecedent  to  the  period  when  these  sums 
were  written  in?  If  one  looks  at  the  deed,  and  particularly  at  that  part 
of  the  deed  which  my  learned  brother  has  referred  us  to,  it  is  quite  im- 
possible that  tlie  deed  could  be  considered  as  having  any  operation  till 
these  sums  were  actually  written  in,  because,  what  was  the  object  of  the 
deed?  The  object  of  all  the  deed  was  to  convey  the  estates  to  trustees, 
that  those  estates  might  be  sold,  and  that  the  ])rocccds  of  those  estates 
might  be  applied  to  pay  certain  creditors'  debts  wliich  were  to  be  ascer- 
tained. In  the  preparation  of  the  draft  of  this  deed  blanks  were  left  for 
the  insertion  of  the  sums  when  those  sums  should  be  ascertained.  \Vhen 
these  parties  met  in  the  King's  Bench  prison,  can  it  be  said  that  that  was 
a  perfect  execution  of  the  deeds,  when  the  sums  that  were  due  to  these 
creditors  remained  unascertained?  The  operative  part  of  the  deed  refers 
to  the  payment  of  particular  sums,  which,  as  then,  were  unascertained. 
It  is  f|uitc  clear,  if  nothing  had  j)assed  at  this  time,  that  the  deed  could 
not  bean  operative  deed  until  those  sums  were  introduced,  becau.sc  tlie 
great  object  of  the  deed  was  the  pnyment  of  those  sums.  I  think,  there- 
fore, taking  it  in  this  point  of  view,  that  this  was  not  to  be  considered  as 
an  execution  of  the  deed, — that  this  was  not  a  complete  deed, — and  that 
therefore  the  case  falls  within  the  authority  of  the  case  in  Cowper,  and 
not  within  the  law  which  is  extracted  from  Perkins. 

This  deed,  as  I  have  stated,  undoubtedly  w-^s  not  to  be  considered  as 
complete  until  the  sums  were   introduced.       Hut  it  has  been   said,   if  it 


472  Hldson  v.  RiiVETT.  H.  T.  1829. 

was  (lelivcrod  to  tin;  jiarty  it  could  not  l)e  lU'livcrcil  as  an  escrow,  unless 
so  (Iplivercil,  in  lorms.  I'eihaps,  toclinically  speaking,  this  is  so;  be-, 
cause  a  deed  delivered  to  a  parly  is  not  an  escrow:  a  deed  delivered  to 
a  stranger  is  an  escrow  till  something  is  done:  but  though  it  is  deliver- 
ed to  a  party,  there  are  cases,  and  in  the  same  page,  to  which  my 
learned  brother  referred,  to  shew  that  it  is  not  a  perfect  and  complete 
deed;  Com.  Dig.  tit.  Faits  (A  3.):  "So  if  it  be  oncQ  delivered  as  his 
deed,  it  is  suflicient^  though  he  afterwards  explained  his  intent  other- 
wise, as  if  an  obligation  be  made  to  A.  and  delivered  to  A.  himself  as 
an  escrow,  to  be  his  deed  on  the  performance  of  a  condition,  this  is  an 
absolute  delivery,  and  the  subsequent  words  are  void  and  repugnant." 
The  authorities  referred  to  in  the  text,  in  support  of  this  i)Osition,  are 
at  least  conflicting;  but  in  the  next  division  (A  4.)  it  appears  that  this 
position  about  delivery  as  an  escrow  is  merely  a  technical  subtlety;  for 
the  learned  writer  says,  "If  it  be  delivered  to  the  party  as  an  escrow, 
to  be  his  deed  on  the  performance  of  a  condition,  it  is  not  iiis  deed  till 
the  condition  is  performed,  though  the  party  happens  to  have  it  before 
the  condition  is  performed,"  This  he  lays  down  on  his  own  authority, 
without  referring  to  any  case;  and  I  am  warranted  in  saying  we  cannot 
have  a  better  authority  than  that  learned  writer. 

I^et  us  see  how  lliat  doctrine  applies  to  the  present  case.  The  par- 
ties meet;  something  is  to  be  done  before  a  complete  deed  can  be  made; 
the  sums  are  to  be  ascertained  which  the  different  creditors  are  to  be 
paid.  That  cannot  be  ascertained  that  day,  it  is  ascertained  at  a  subse- 
quent da)",  and  they  are  written  in.  Take  it,  if  you  please,  that  this 
yi  is  a  delivery  of  the  deed  as  a  deed,  is  it  not  a  delivery  of  the  deed  in 
/  the  language  of  Lord  Coke,  upon  condition;  that  is,  upon  condition 
that  something  is  to  be  done,  which  at  that  time  was  not  done?  That 
something  is  afterwards  done:  then,  and  not  till  then,  it  becomes  a 
perfect  deed.  It  seems  to  mc,  therefore,  without  touching  any  of  the 
cases  that  have  been  decided  on  the  0])eration  of  deeds,  we  may  say 
that  this  deed  was  not  a  complete  deed,  executed  so  as  to  have  effect  in 
the  hands  of  the  parties  until  these  sums  were  written  in. 

I  shall  not,  after  what  I  have  said,  travel  through  the  different  cases 
that  have  been  cite<l  with  respect  to  the  alteration  of  deeds;  but  I  beg 
not  to  be  taken  as  deciding,  that  if  a  deed  be  altered  with  the  consent 
of  all  the  parties,  after  it  is  executed,  it  is  not  to  be  considered  as  a  good 
deed.  I  think,  if  we  were  driven  to  examine  that  question,  it  would 
be  found  that,  in  these  times,  whatever  might  have  been  thought  for- 
merly, if  all  the  parties  assent  to  the  alteration  of  a  deed,  it  will,  in  its 
altered  shape,  be  a  good  deed;  but  I  do  not  decide  this  case  on  that 
ground.  I  decide  it  on  this,  that  it  either  was  no  deed  at  all,  until  the 
sums  were  vvritlen  in,  and  that  then  the  jury  were  warranted  in  presuming 
a  delivery  to  make  it  a  deed;  or,  if  it  were  a  deed,  it  was  delivered 
only  to  have  operation  from  the  time  that  those  sums  were  written  in, 
which  were  to  give  it  all  its  effect.  I  think  we  must  take  it,  from  what 
passed  at  the  time  of  the  execution,  it  was  not  to  be  considered  as  hav- 
ing effect,  till  it  could  have  its  full  effect,  by  all  the  sums  being  written 
in,  that  were  to  be  written  in.  On  these  grounds  I  am  of  opinion  that 
the  rule  should  be  discharged. 

My  Brother  Bnrrovgh  (a),  who  heard  the  argument,  desired  I  should 
stale  he  concurred  in  this^opinion. 

{(i)  He  was  at  cliambcrs.     Par^  J.  was  absent  from  ill  health. 


5  Bingham,  368.  473 

Gaselee  J.  This  case  has  been  extremely  well  argued,  and  a  great 
many  authorities  have  been  referred  to  which  it  is  not  necessary  to  go 
through  at  length.  The  authority  that  struck  me  the  most  as  against 
the  opinion  of  my  Lord  Chief  Justice  as  now  delivered,  was  the  passage 
cited  from  Buller: — "  If  there  be  blanks  left  in  an  obligation  in  places 
material,  and  filled  up  afterwards  by  the  assent  of  the  parties,  yet  is 
the  obligation  void,  for  it  is  not  the  same  contract  that  was  sealed  and 
delivered."  That  is  certainly  borne  out  by  the  authority  in  Roll's  Abr. 
But  I  think  the  instance  which  he  specifies  is  not  borne  out  by  the  au- 
thority to  which  he  refers.  He  goes  on; — "  as  if  a  bond  be  made  to  C, 
with  a  blank  left  for  his  Christian  name,  and  for  his  addition,  which  is 
afterwards  filled  up."  I  should  certainly  have  thought  that  the  leaving 
the  blank  for  the  Christian  name  and  the  addition,  imported  of  itself  it 
was  to  be  afterwards  filled  uj):  and  I  think  thnt  Mr.  Justice  Buller's  po- 
sition is  not  warranted  by  the  authority  to  which  he  refers.  Certainly 
this  case  does  not  range  itself  within  the  first  part  of  this  sentence,  be- 
cause, notwithstanding  the  degree  of  industry  with  which  my  Brother 
JVilde  has  cited  cases,  and  the  confidence  with  which  he  argued  that 
the  contract  was  altered,  I  cannot  agree  with  him  on  that;  it  appears  to 
me,  from  what  was  done  in  this  case,  that  the  contract  was  not  altered. 
What  was  the  object  of  the  contract?  The  contract  was  to  pay  all  that 
Rcvett  was  indebted  to  Mills  and  other  creditors;  that  which  was  un- 
certain when  the  deed  was  first  executed,  or,  rather,  when  the  deed  was 
originally  scaled,  was  afterwards  reduced  to  a  certainty.  And  the  way 
in  which  I  consider  that  this  deed  is  good  is  this, — that  it  was  an  imper- 
fect execution,  with  an  agreement  at  the  time  that  it  should  take  eflfect 
when  the  blanks  were  filled  up.  There  was  a  meeting  for  that  purpose, 
the  sums  at  that  time  were  agreed  to,  and  it  was  filled  up  by  Brown, 
who  was  adopted  as  the  agent  of  both  parties;  and  he  took  away  the 
deed  for  the  purpose  of  carrying  it  to  other  parties,  by  whom  it  was 
also  to  be  executed.  It  is  said  that  the  defendant  Rcvett  never  had 
liimself  the  ])ossession  of  this  deed.  No;  but  a  deed  may  be  delivered 
cither  by  taking  hold  of  the  deed  itself,  or  by  words,  or  by  acts.  The 
permitting  this  person  to  take  the  deed  away  for  the  purpose  of  the 
other  parties  executing  it,  is  of  itself  fit  to  be  left  to  the  jury,  as  a  ques- 
tion whether  or  not  ihat  was  not  (if  a  redelivery  should  be  held  to  be 
necessary)  a  redelivery  on  the  mere  insertion  of  the  sums.  On  that  ground 
I  am  of  opinion  this  trust  deed  is  to  be  considered  as  good. 

With  respect  to  the  witness  lirown,  I  should  have  great  difiiculty  oa 
the  subject,  taking  it  in  the  usual  course,  in  saying  that  l}rown  would 
be  a  witness.  He  is  a  party  to  the  deed,  and  he  had,  at  the  time  of  the 
trial,  incurred  expenses,  and  the  expenses  were  to  be  paid  according  to 
the  terms  of  the  deed.  lint,  considering  it  in  the  point  of  view  in 
which  my  Lord  Chief  Justice  has  considered  it,  and  in  which  I  have 
known  issues,  directed  by  the  Court  of  ('banccry,  treated,  where  the 
object  was  to  satisfy  the  conscience  of  the  Court;  if,  upon  the  whole, 
we  see  that  justice  has  been  done,  there  is  no  occasion  to  send  it  down 
to  a  new  trial.  Now,  has  justice  been  done  here;  and  docs  it  depend 
really  and  singly  on  the  testimony  of  lirowii?  l-'irst  of  all,  What  is 
the  probability?  The  probability  of  the  case  is,  that  it  was  left  for 
future  consideration.  There  arc  a  throat  many  blanks  when  tjie  deed 
is  carried  to  be  executed  tlie  first  day  in  the  Kind's  IJcucb;  all  the  blanks 
are  filled  up,   cxce])t  .Mills'.s  debt;   the   probability  is,   that  at   lhat  time 

VOL.  XV.  '^f> 


17  1  l)l.  {'nLM'U.NY  v.   W'lil.LIiSLLY.    H.  T.  1829. 

Mtlls's  (lobt  was  not  ascertained:  we  have  it  from  Brown  it  was  done  ihe 
next  day.  Docs  it  rest  on  liis  evidence  only?  Mr.  Chapman  says,  "I 
saw  Rcvctt  afterwards,  with  the  draft  of  the  deed  before  him;  he  was 
reading:  he  told  me  lie  had  executed  it,  and  that  he  had  got  time:" 
therefore,  the  cviilence  of  Chapman  shews  that  what  was  done  the  se- 
cond day  of  mcciing  was  done  with  Revett's  assent.  But  it  does  not 
rest  there;  it  appears  that  Revett  was  cognizant  of  all  he  had  done,  and 
he  expressly  acts  upon  and  confirms  the  deed;  for  he  says,  in  a  letter  to 
Moss,  a  tenant,  "  Having  this  day  executed  to  Mr.  Thomas  Hudson, 
of  the  firm  of  JNIessrs.  Harveys  and  Hudsons,  bankers  at  Norwich,  a 
conveyance  of  all  my  estate  and  hereditaments,  in  trust,  for  the  pur- 
pose of  satisfying  various  charges  and  incumbrances,  on  the  above  pro- 
perty, I  write  to  desire  that  you  will  in  future  pay  your  rents  to  the 
said  Thomas  Hudson,  or  his  appointed  receiver,  whose  receipt  will  be 
a  suflicient  discharge."  That  letter,  therefore,  shews  the  confirmation 
of  the  contract:  it  shews  he  was  aware  of  what  had  been  done,  and  I 
think  satisfies  the  Court  that  the  jury  upon  this  occasion  have  done 
justice. 

Rule  discharged. 


Sir  W.  DE  CRESPIGNY  v.  WELLESLEY.— p.  392. 

In  an  action  for  a  libel,  it  is  no  plea,  that  the  defendant  had  the  libellous  state- 
ment from  another,  and  upon  publication  disclosed  the  author's  name. 

To  the  ninth  count  of  a  declaration  for  libel,  the  defendant,  after 
pleading  the  general  issue,  pleaded,  secondly,  As  to  the  publishing, 
and  causing  and  procuring  to  be  published,  the  following  parts  of  the 
said  supposed  libel  of  and  concerning  the  said  plaintiff,  in  the  said  ninth 
count  of  the  said  declaration  mentioned,  with  the  intent  and  mean- 
ing therein  mentioned;  to  wit,  "Mr.  De  Crespigny  told  Mr.  Welles- 
ley  he  was  wrong  in  supposing  he  had  spoken  to  his  father.  Sir 
W.  De  Crespigny  (meaning  the  said  plaintiff):  he  had  written  a  letter 
to  him,  and  he  had  his  (meaning  the  said  plaintiff's)  answer,  in 
which  he  admitted  the  fact;  and  that  his  wife,  Mrs.  De  Crespigny 
and  himself  had  the  letter;  that  all  the  family  knew  of  the  circum- 
stance (intimacy),  that  his  poor  brother  William,  who  is  dead,  was 
extremely  jealous  of  his  father,  (meaning  tlie  said  plaintiff),  and  had 
been  turned  out  of  his  house;  that  his  mother  had  told  him  that  a  child 
had  been  born,  and  that  it  had  been  her  conclusion  that  his  brother 
Herbert  had  spoken  to  his  father  (meaning  to  the  said  plaintiff)  upon 
the  subject,  who  replied  that  he  (meaning  the  said  plaintiff)  entreated 
that  so  distressing  a  subject  might  not  be  again  mentioned  to  him  (mean- 
ing to  the  said  plaintiff):  the  Rev.  Mr.  De  Crespigny  told  Mr.  Welles- 
ley  he  thought  he  was  quite  right  not  to  allow  his  children  to  re- 
main with  people  so  infamously  connected:  Mr.  De  Crespigny  in- 
formed Mr.  Wellesley  he  had  seen  the  Miss  Longs  yesterday  at 
their  house  in  Berkshire,  and  that  he  had  directly  accused  Miss 
Emma  Long  with  her  intrigue,  upon  which  she  got  so  confused 
that  she  left  the  room  in  the  greatest  embarrassment;  that  he  then 
stated  to  Miss  Dora  Long,  that  Miss  Emma  Long  had  intrigued  with 
his  father  (meaning  with  the  .said  plaintiff),  and  that  Mr.  Wellesley 
f meaning  the  said  defendant)  intended  to  publish  the  whole  story, 
unless  they  immediately  give  up  his  children:   Miss  Long  replied,  that 


5  Bingham,  392.  475 

she  had  nothing  to  do  with  her  sister's  intrigue,  and  siic  must  be  re- 
sponsible for  her  own  con(Uict;  but  that  no  one  woukl  beUevc  what  Mr 
VVellesleysaid:  Mr.  De  Crcspigny  assured  Mr.  Wellesley  that  she  nevei' 
denied  her  sister's  having  committed  the  lauU:  Mr.  De  Crespigny  told 
her  his  father  had  confessed  it;  (not  denied  it);  to  which  she  made  no 
reply,  but  put  herself  into  a  violent  passion,  and  said  she  did  not  wish 
to  see  any  of  Mr.  Wellesley's  friends  witbin  her  house: — notwithstand- 
ing such  declaration,  she  invited  Mr.  De  Crespigny  to  dine  with  them, 
and  to  sleep  at  Binfield  House:  the  above  minutes  were  shewn  to  Capt. 
De  Brooke,  and  on  the  part  of  the  Rev.  H.  C.  De  Crespigny  he  admit- 
ted them  twice  to  be  correct,  with  the  exception  of  one  word,  viz.  that 
for  confessed  it,  the  words  jwt  denied  it  ought  to  be  substituted:"  the 
said  defendant,  by  leave  of  the  Court  here  for  this  purpose  first  had  and 
obtained,  according  to  the  form  of  the  statute  in  such  case  made  and 
provided,  says,  that  the  said  plaintiff  ought  not  to  have  and  maintain 
his  aforesaid  action  thereof  against  him,  because  he  says,  that  before  the 
publishing  of  the  said  parts  of  the  said  supposed  libel  in  the  said  ninth 
count  of  the  said  declaration  mentioned,  to  wit,  on  the  5th  day  of  De- 
cember, in  the  year  of  our  Lord  1S27,  at,  &c.  the  said  Rev.  H.  C.  De 
Crespigny  told  the  said  defendant  that  he  was  wrong  in  supposing  that 
he  the  said  H.  C.  De  Crespigny  had  spoken  to  his  father.  Sir  \V.  De 
Crespigny:  he  had  written  a  letter  to  him,  and  that  he  had  his  (mean- 
ing the  said  plaintiff's^  answer,  in  which  he  (meaning  the  said  plaintiff) 
admitted  the  fact;  and  that  his  (the  said  II.  C.  Dc  Crcspigny's)  wife  and 
himself  had  the  letter;  that  all  the  family  knew  of  the  intimacy;  that 
his  poor  brother  William,  who  was  dead,  was  extremely  jealous  of  his 
father  (meaning  the  said  plaintiff),  and  had  been  turned  out  of  his  house; 
that  his  brother  Herbert  had  si)oken  to  his  father  (meaning  the  said 
plaintiff)  upon  the  sul)jcct,  who  had  replied,  tliat  he  (meaning  the  said 
plaintiff;  entreated  that  so  distressing  a  subject  might  not  be  again  men- 
tioned to  him  (meaning  to  the  said  jilaintdV):  and  the  said  II.  C.  Dc 
Crespigny  then  and  there  further  told  the  said  defendant,  he  thought  ho 
was  quite  right  not  to  allow  his  children  to  remain  with  people  so  in- 
famously connected:  And  the  said  II.  C.  De  Crespigny  afterwards  and 
before  publishing  the  said  libel  in  the  introductory  part  of  this  plea 
mentioned,  to  wit,  on,  &c.  at,  &c.  further  told  the  said  defendant  that 
he  had  seen  the  Misses  Long  yesterday  at  their  house  in  Derkshire,  find 
that  he  the  said  H.  ('.  De  Crcspigny  had  directly  accused  Miss  Kmma 
i^ong  with  her  intrigue,  upon  which  she  got  so  confused  that  she  left 
tlic  room  in  the  greatest  embarrassment;  that  he  then  slated  to  Miss 
Dora  Long,  that  JNIiss  Emma  Long  had  intrigued  with  his  father  (mean- 
ing the  said  plaintiff),  and  that  Mr.  Wellesley  (meaning  the  said  defend- 
ant intended  to  publish  the  wlinle  story  unless  they  immediately  gavo 
lip  his  children.  That  INIiss  Long  re|)licd,  she  had  nothing  to  do  with 
her  sister's  intriguR,  and  that  she  must  In-  responsible  lor  her  own  con- 
duct, but  that  no  one  would  believe  what  ,Mr.  NVelJesley  said;  and  the 
srdd  II.  C.  De  Crespigny  assured  tlu;  said  defendant  I  bat  she  never  de- 
nied her  sister's  having  committed  the  fault.  Mr.  Dc  Crespigny  told 
her  his  father  had  not  denied  it;  lo  which  she  mad(!  no  reply,  anil  said 
she  did  not  wish  to  see  any  of  Mr.  Wellesley's  friends  within  lier 
house:  notwithstanding  such  declaration,  she  invited  Mr.  De  Crespigny 
to  dine  with  them,  and  to  sleep  .u  Binfield  House.  And  the  said  defend- 
ant further  said,  that  before    the  pid)lishing  the  "said  parls  of  the   said 


476  De  CiiESi'iGNY  r.  Wkllesley.  H.  T.  1821*. 

eupposed  libel  in  l!ie  inlroiliictory  part  of  tliis  plea  mentioned,  to  wit, 
on,  &.C.,  at,  ^c,  certain  minutes  and  statements  in  writing  were  made 
as  and  for  correct  minutes  and  statements  of  the  said  communications 
and  representations  so  made  by  the  said  11.  C.  De  Crespigny  as  afore- 
said, and  the  same  were  then  and  there  revised  and  corrected  by  the  said 
H.  C.  Do  Crespigny;  and  when  so  revised  and  corrected,  contained,  and 
still  do  contain,  the  words  and  matter  following,  with  the  interlineations 
and  alterations  as  follows:  (here  followed  a  statement  of  the  minutes  as 
revised  and  correctctl  by  the  Kev.  H.  C.  De  Crespigny.  The  expres- 
sion not  denied,  was  substituted  for  confessed;  and  the  statement  that 
his  mother  told  him  a  child  had  been  born,  was  erased;  in  other  respects 
the  minutes  corresponded  with  the  foregoing  statement.) 

And  the  said  defendant  further  said,  that  afterwards,  and  before  the 
publishing  of  the  said  parts  of  the  said  supposed  libel,  in  the  said  ninth 
count  mentioned,  to  wit,  on,  &c.,  at,  &c.,  the  said  H.  C.  De  Crespigny 
caused  the  said  minutes  and  statements,  so  revised  and  corrected  by  him  as 
aforesaid,  and  containing  the  words  and  matter  last  aforesaid,  to  be  deliver- 
ed to  him,  the  said  defendant,  as  and  for  a  true  and  correct  statement  of  the 
conversation  he,  the  said  H.  C.De  Crespigny,  had  had  with  the  said  defend- 
ant as  aforesaid;  and  the  said  minutes  were  theretofore,  to  wit,  on,  &c., 
at  &c.,  shewn  to  the  said  Captain  De  Brooke,  in  the  presence  of  the  said 
Colonel  Freemantle,  Mr.  Saville  l^umley,  M.  P.,  and  Colonel  Paterson. 
And  the  said  defendant  further  said,  that  at  the  time  of  the  publishing 
the  said  parts  of  the  said  supposed  libel  in  the  said  ninth  count  and  in 
the  introductory  part  of  this  plea  mentioned,  as  therein  mentioned,  he, 
the  said  defendant,  also  published  that  the  same  had  been  so  published 
to  him  by  the  said  H.  C.  De  Crespigny,  therein  mentioned  as  aforesaid; 
wherefore  he  the  said  defendant,  at  the  said  several  times  when,  &c., 
in  the  said  ninth  count  mentioned,  did  publish  of  and  concerning  the 
said  plaintifl"  the  said  several  parts  of  the  said  supposed  libel  in  that 
count  mentioned,  as  he  lawfully  might  for  the  cause  aforesaid,  and  this 
he  is  ready  to  verify,  &c. 

To  this  plea  there  was  a  demurrer:  and  many  causes  of  demurrer 
were  specified  and  argued;  but  as  the  decision  turned  altogether  on  the 
general  question,  it  is  unnecessary  to  state  the  other  points. 

Wilde  Serjt.  in  support  of  the  demurrer.  It  is  no  justification  of 
slander  to  say,  that  it  is  only  the  repetition  of  what  has  before  been  pub- 
lished by  another;  and,  at  all  events,  such  a  plea  is  no  justification  of  a 
libel.  He  referred  to  Lord  Northampton'' s  case,  12  Rep.  134;  stat.  2 
R.  2.  c.  5.,  3  Ed.  1.  c.  34.;  Lewis  v.  Walter,  4  B.  &  A.  614;  Craw- 
ford \.  Middleton,  1  Lev.  82;  Gardner  \.  Atwater,  Say.  2G5;  Wool- 
nothv.  Meadoivs,  5  East,  463;  Leivesv.  Walter,  Cro.  Jac.  406.  413; 
Davis  V.  Lewis,  7  T.  R.  17;  Maitland  v.  Goldney,  2  East,  426;  McGre- 
gor V.  Thioaites,  3  B.  &  C.  24. 

Spankie  Serjt.   contra,  cited  Lord  Northampton's  case;  Lewes  v. 

Walter,  Roll.  Rep.  444;  Dame  Morrison  v.  Cade,  Cro.  Jac.  162;  1 

Roll.  Abr.  64.  {C);  Styles  v.  Nokes,  7  East,  492. 

Wilde  in  reph-.  n  i         n 

^  ■^  Cur.  adv.  vult. 

Best  C.  J.  Great  industry  has  been  bestowed  upon  this  case  by  my 
learned  Brothers  by  whom  it  was  argued;  but  no  case  has  been  cited,  in 
which  the  principle,  extrajudicially  applied  by  the  fourth  resolution  in 
Lord  Northampton's  case  to  oral  slander,  has  been  extended  to  libel. 


5  Bingham,  392.  477 

We  might  relieve  ourselves  from  the  difficulty  of  deciding  this  question, 
by  saying  that  the  technical  objections  taken  to  the  pleas  by  the  demurrer 
are  sufficient  to  entitle  the  plaintiff  to  judgment.  But  we  think  it  more 
proper  for  us  to  pronounce  our  judgment  on  the  principal  question  raised 
by  these  pleadings,  namely,  Whether  a  man  who  receives  from  the 
hands  of  another  a  libel  on  any  person,  is  justified  in  publishing  that  li- 
bel, provided  that  in  his  publication  the  name  of  the  person  from  whom 
he  received  it  is  mentioned?  We  do  not  hesitate  to  say,  that  even  if  we 
were  to  admit,  what  we  beg  not  to  be  considered  as  admitting,  that  in 
oral  slander,  when  a  man  at  the  time  of  his  speaking  the  words  names 
the  person  who  told  him  what  he  relates,  he  may  plead  to  an  action 
brought  against  him,  that  the  person  whom  he  names  did  tell  him  what 
he  related, — such  a  justification  cannot  be  pleaded  to  an  action  for  the 
republication  of  the  libel. 

If  the  person  receiving  a  libel  may  publish  it  at  all,  he  may  publish  it 
in  whatever  manner  he  pleases;  he  may  insert  it  in  all  the  journals,  and 
thus  circulate  the  calumny  through  every  region  of  the  globe.  The  ef- 
fect of  this  is  very  different  from  that  of  the  repetition  of  oral  slander.  In 
the  latter  case,  what  has  been  said  is  known  only  to  a  few  persons,  and  if 
the  statement  be  untrue,  the  imputation  cast  upon  any  one  may  be  got 
rid  of;  the  report  is  not  heard  of  beyond  the  circle  in  which  all  the  par- 
ties are  known,  and  the  veracity  of  the  accuser,  and  the  previous  charac- 
ter of  the  accused,  will  be  properly  estimated.  But  if  the  report  is  to  be 
spread  over  the  world  by  means  of  the  press,  the  malignant  falsehoods 
of  the  vilest  of  mankind,  which  would  not  receive  the  least  credit  where 
the  author  is  known,  would  make  an  impression  which  it  would  require 
much  time  and  trouble  to  erase,  and  which  it  might  be  difficult,  if  not 
impossible,  ever  completely  to  remove. 

The  reason  which  Lord  Coke  gives,  why  in  the  case  of  oral  slander 
you  should  name  the  author,  proves  that  you  must  not  be  allowed  to 
j)ublish  written  calumny:  he  says,  that  unless  you  mention  the  name  of 
the  author,  it  might  be  a  great  slander  of  an  innocent;  "for  if  one  who  has 
laesam  phantasiam,  oris  a  drunkard,  or  of  no  estimation,  speaks  scandalous 
words,  if  it  shall  be  lawful  for  a  man  of  credit  to  rejiort  generally  that  he 
had  heard  scandalous  words  without  mentioninghis  author, that  would  give 
greater  colour  and  probability  that  the  words  were  true  in  respect  of  the 
credit  of  the  reporter  than  if  the  author  were  mentioned,  for  tlie  reputation 
of  every  good  man  is  dear  and  precious  to  him."  Of  what  use  is  it  to  send 
the  name  of  the  author  with  a  libel  that  is  to  pass  into  a  country  where 
he  is  entirely  unknown:  the  name  of  the  author  of  a  statement  will  not 
inform  those  who  do  not  know  his  character,  wlu;thcr  he  is  a  person  en- 
titled to  credit  for  veracity  or  not;  whether  his  statement  was  made  in 
earnest  or  by  way  of  joke;  whether  it  contains  a  charge  made  by  a  man 
of  sound  mind  or  the  delusion  of  a  lunatic.  There  is  no  allegation,  in 
this  case,  that  the  defendant  believed  this  statement;  on  the  contrary,  it 
is  to  be  observed,  that  Mr.  l)e  Oespigny  struck  out  a  very  material  part 
of  the  statnmcnt,  and  yet  the  defendant  published  it,  although  he  must 
have  known  that  it  was  not  correct.  I  allude  to  that  part  in  which  the 
defcn<lant  makes  Mr.  I)e  ('rcspigny  say,  that  his  mother  had  told  him 
that  a  child  had  been  born,  Although  he  tells  you  in  his  pica  that  Ue 
Crcspigny  had  erased  llio.sc  words,  yet  he  justifies  the  publishing  of  them. 
The  declarations  of  a  son  and  dying  wife  are  made  the  means  of  blasting 
the  character  of  a  father  and  husband.  If,  without  any  allegation  that  its 
contents  were  truo,  or  that  the  publisher  had  any  reason  to  believe  them  to 


478  Dli  CutSlU.NY   V.    WELLliSLEY.     11.   T.    1829. 

be  true,  we  were  to  hold  that  tlicse  pleas  were  a  JLislification,  we  should 
estahli.>ih  a  mode  by  which  men  might  indulge  themselves  in  ruining  the 
characters  of  any  persons  they  might  he  disposed  to  calumniate;  there 
will  be  no  diflioulty  in  getting  wretches,  who  would  be  better  off  within 
the  walls  of  a  prison  than  they  are  without,  to  furnish  such  as  will  pay 
for  them  with  any  statements  they  may  desire  respecting  the  character 
of  any  person  whatsoever. 

Written  communications  arc  often  made  for  the  information  of  those 
to  whom  they  are  given,  and  for  their  information  only.  Such  com- 
munications contain  facts  necessary  to  be  known  by  those  to  whom 
ihey  are  made,  but  not  fit  to  be  divulged  to  the  whole  world.  It  may 
be  important  to  the  interest  of  the  members  of  a  family  to  know  of 
things  which  have  taken  j)lace  in  their  family,  and  which  having  been 
disclosed  with  a  due  regard  to  the  interest  of  the  person  to  whom  the 
disclosure  was  made,  although  injurious  to  some  other  person's  charac- 
ter, would  not  be  libellous.  Can  it  be  permitted  that  persons  possessing 
such  communications  should  publish  them  to  the  world  if  they  only  give 
the  names  of  those  by  whom  they  were  made?  Such  a  doctrine  might 
furnish  amusement  for  the  lovers  of  scandal,  but  it  would  cause  much 
misery  in  many  families.  It  is  a  principle  of  our  law,  that  whoever 
wilfully  assists  in  the  doing  an  unlawful  act,  becomes  answerable  for  all 
the  consequences  of  such  act:  what  reason  is  there  to  except  the  circula- 
tion of  slander  out  of  this  rule?  He  who  prints  and  publishes  what  was 
given  to  him  in  manuscript,  has  to  answer  for  by  far  the  greatest  part 
of  the  mischief  that  the  statement  has  occasioned.  But  it  has  been  said 
at  the  bar  that  these  pleas  are  prima  facie  answers,  and  that  the  circum- 
stances that  are  to  shew  that  the  publication  was  not  honestly  made  are 
to  come  from  the  plaintiff  in  his  replication,  or  to  be  proved  under  the 
general  replication  de  injuria.  The  defendant  ought  to  know  the  state 
of  the  author,  and  the  circumstances  in  which  he  wrote  the  libel.  The 
plaintiff  may  be  ignorant  of  those  circumstances:  the  law  requires  that 
facts  should  be  proved  by  those  who  ought  to  have  the  means  of  know- 
ing them,  and  not  by  those  who  must  be  presumed  ignorant  of  them. 
But  these  pleas  do  not  present  a  prima  facie  defence.  They  offer  nothing 
which  requires  an  answer.  Because  one  man  does  an  unlawful  act  to 
any  person,  another  is  not  to  be  permitted  to  do  a  similar  act  to  the  same 
person.  Wrong  is  not  to  be  justified,  or  even  excused,  by  wrong.  If  a 
man  receives  a  letter  with  authority  from  the  author  to  publish  it,  the 
person  receiving  it  will  not  be  justified,  if  it  contains  libellous  matter,  in 
inserting  it  in  the  newspapers.  No  authority  from  a  third  person  will 
defend  a  man  against  an  action  brought  by  a  person  who  has  suffered 
from  an  unlawful  act.  If  the  receiver  of  a  letter  publish  it  without  au- 
thority, he  is,  from  his  own  motion,  the  wilful  circulator  of  slander. 
This  seems  to  be  a  case  of  the  latter  description:  but,  if  published  either 
with  or  without  the  authority  of  the  writer,  it  can  never  be  a  justifica- 
tion, nor  can  the  previous  publication  be  set  up  in  mitigation  of  damages, 
without  proof  that  the  author  believed  it  true,  and  had  some  reasonable 
cause  for  publishing  it.  We  are  not  to  endure  a  reproach  against  our 
neighbour.  What,  then,  is  our  moral  duty,  if  we  hear  any  thing  inju- 
lious  to  the  character  of  another?  If  what  we  have  been  told  docs  not 
concern  the  public  or  the  administration  of  justice,  we  arc  to  lock  it  up 
for  ever  in  our  own  breasts.  We  arc  on  no  account  to  report  it  to  gra- 
tify our  enmity  to  any  particular  person,  or,  for  that  more  common  cause 


5  Bingham,  392.  479 

of  slander,  to  gratify  the  malice  that  exists  by  a  desire  to  raise  ourselves 
above,  or  to  keep  ourselves  upon  an  equality  with  our  neighbours  by 
injuring  their  characters. 

The  statements  published  relative  to  the  plaintiflf  do  not  concern  the 
public;  they  are  not  disclosed  in  the  course  of  the  administration  of  jus- 
tice; nor  does  it  appear  from  the  pleadings  that  the  defendant,  in  making 
this  virulent  attack  on  the  plaintiff,  has  the  excuse  that  he  published  this 
paper  in  his  own  defence:  but  before  he  used  this  statement  in  any  man- 
ner, he  was  bound  to  satisfy  himself  that  it  was  true;  and  he  does  not 
even  say  that  he  believed  it.  Before  he  gave  it  general  notoriety  by 
circulating  it  in  print,  he  should  have  been  prepared  to  prove  its  truth 
to  the  letter;  for  he  had  no  more  right  to  take  away  the  character  of  the 
plaintiff,  without  being  able  to  prove  the  truth  of  the  charge  that  he  had 
made  against  him,  than  to  take  his  property  without  being  able  to  justify 
the  act  by  which  he  possessed  himself  of  it.  Indeed,  if  we  reflect  oa 
the  degree  of  suffering  occasioned  by  loss  of  character,  and  compare  it 
with  that  occasioned  by  loss  of  property,  the  amount  of  the  former  in- 
jury far  exceeds  that  of  the  latter.  We  are  warranted  in  saying  that  the 
defendant  has  made  a  very  serious  charge  against  the  character  of  the 
plaintiff  without  being  prepared  to  make  it  good;  for  if  he  could  have 
proved  that  what  he  published  was  true,  he  might  have  put  the  truth  of  the 
statement  on  the  record  as  his  justification. 

Judgment  for  the  plaintiff. 


CHARLES  CARTER  v.  ROBERT  CARTER  and  Others.— p.  40G. 

1.  A  payment  of  ground-rent  by  the  occupier,  in  default  of  the  mesne  tenant,  is 
not  the  less  a  comijulsnry  payment  because  the  ground-landlord  on  demanding 
it  allows  the  occupier  time  to  pay. 

2.  Growing  rent  may  be  discharged  by  such  payments  as  well  as  rent  actually 
due. 

3.  Where  growing  rent  has  been  reduced  by  payments  of  land-tax,  &c.  if  the 
landlord  distrains  for  the  whole  sum  reserved,  the  tenant  may  properly  sue  in 
case. 

Case  for  wrongfully  distraining  for  25/.,  when  only  5/.  10*.  was  due. 
There  were  also  counts  for  an  excessive  distress,  a  wrongful  distress, 
and  a  count  in  trover. 

At  the  trial  before  Best  C.  J.,  Middlesex  sittings,  after  Michaelmas 
term,  the  facts  w(!rc  as  follows: — 

The  plaintiff  rtMitod  a  Iwjiisr;  of  ihe  defendant,  Carter,  at  50/.  a  year. 
Shortly  nflL-r  ho  lind  paid  liis  half-year's  rent,  due  I^ady-day  1827,  the 
ground  Inndlord's  steward  railed  on  him  for  8/.  lO.v,  ground-rent,  diio 
thc  Christmas  preceding,  and  S/.  lO.v.  due  at  Michaelm;is  pi-eccding. 
The  plaintiff  complained  of  the  hardship  of  such  a  demand  just  after  he 
had  paid  the  rent  of  his  immediate  landlord,  and  prayed  for  time.  The 
steward  gave  hiin  time.  8/.  10,y.  was  p.iid  in  the  following  .Tidy,  and 
8/.  lOv.  in  September.  The  stewnrd  stiited  that  he  ncve-r  called  on  the 
occupier  for  the  groimd-rfinl,  unless  delaidt  hnd  been  made  by  the  im- 
mediate lessee,  whi(!h  w.ts  llie  cise  in  the  pn^sent  instance. 

In  September  1S27,  tlur  pl.iintiff,  being  ealleil  on  to  do  so,  also  paid 
2/.  lO.T.  for  land-tax,  duf  at  Michaelmas  1H2G,  and  Lady-day  and  Mi- 
chaelmas 1S27. 


480        Carter  v.  Carter.  H.  T.  1829. 

In  November  following,  the  defendant,  Carter,  demanded  of  theplain- 
tifl'  25/.  for  half  a  year's  rent  alleged  to  be  due  the  preceding  Michael- 
mas. The  plaintiir  tendered  him  in  discharge  5l.  10*.,  and  the  receipts 
for  the  ground-rent  and  land-tax  as  above. 

This  the  defendant  refused  to  accept,  and  distrained  for  the  whole  25/. 

On  the  part  of  the  defendant,  it  was  objected  that  the  action  was  im- 
properly conceived;  that  none  of  the  counts  in  the  declaration  were 
adapted  to  the  plaintiff's  case;  and  that  if  any  wrong  had  been  done  to 
the  plaintiff,  his  remedy  was  not  case,  but  replevin,  in  which,  to  an 
avowry  for  the  rent,  he  might  have  pleaded  the  payment  of  the  ground- 
rent,  &c.;  Supsford  v.  Fletcher,  4  T.  R.  511;  Taylor  v.  Zamira,  6 
Taunt.  524;  that  the  defendant,  however,  was  entitled  to  distrain  for 
the  whole  rent  due  at  Michaelmas:  no  set-off  being  permitted  in  cases 
of  distress,  Andreio  v.  Hancock,  1  B.  &.  B.  37,  the  distress  could  not 
be  answered  by  any  thing  but  payment;  and  payment  could  only  be  of 
a  debt  due;  the  discharge  of  the  ground-rent,  therefore,  by  the  plaintiff 
could  not  operate  as  payment  of  the  rack-rent,  because  at  the  time  the 
ground-rent  was  discharged,  the  rack-rent  in  question  was  not  due. 

At  all  events  no  payment  would  go  in  discharge  of  rack-rent,  but  a  pay- 
ment by  compulsion;  and  here  the  plaintiff  could  not  be  said  to  have 
paid  upon  compulsion,  when  the  ground  landlord's  steward  allowed  him 
time  to  pay  at  his  convenience. 

A  verdict  having  been  found  for  the  plaintiff, 

Wilde  Serjt.  obtained  a  rule  nisi  to  set  it  aside  upon  the  foregoing  ob- 
jections. 

xB^ndrews  Serjt.  shewed  cause.  The  action  is  properly  conceived  in 
case,  for  replevin  only  lies  where  no  rent  is  due,  and  in  the  present  in- 
stance the  plaintiff  has  no  remedy  if  he  cannot  sue  in  case.  And  the 
payment  of  ground-rent  and  land-tax  may  operate  as  payment  of  rack-rent 
growing  due,  as  well  as  of  rack-rent  actually  due.  In  Stuhhs  v.  Par- 
sons, 3  B.  &  A.  516,  Bay  ley  J.  said,  "the  law  considers  the  payment 
of  the  land-tax  as  a  payment  of  so  much  of  the  rent  then  due,  or  growing 
due,  to  the  landlord." 

The  circumstance  that  the  ground  landlord  allowed  the  plaintiff  time  to 
pay  the  ground-rent,  after  it  was  demanded,  does  not  render  it  the  less  a 
compulsory  payment.  The  defendant  had  failed  to  pay  it,  and  the 
plaintiff,  notwithstanding  the  indulgence  granted  him,  paid  under  a  lia- 
bility to  distress. 

Bompas  Serjt.  (for  Wilde)  relied  on  the  objections  urged  at  the  trial. 

Best  C.  J.  The  great  stand  made  at  the  trial,  on  the  part  of  the  de- 
fendant, was,  that  this  payment  by  the  plaintiff  was  a  voluntary  pay- 
ment. I  thought  then,  and  am  still  of  the  same  opinion,  that  it  was  not 
a  voluntary  payment.  The  plaintiff  was  liable  to  be  distrained  on  for 
ground-rent.  Having  just  paid  his  rack-rent,  he  prayed  for  time  to  pay 
the  ground-rent.  Six  weeks  were  allowed,  at  the  end  of  which  time  it 
was  paid:  but  the  defendant  knew  he  was  liable  to  distress,  though  not 
actually  distrained  on;  and  a  payment  under  such  circumstances  is  no 
more  voluntary,  than  a  donation  to  a  beggar  who  presents  a  pistol.  In 
Sapsford  v.  Fletcher,  and  Taylor  v.  Zamira,  the  payment  of  ground- 
rent  by  the  occupier  for  the  landlord,  was  holden  not  to  constitute  a 
cross  demand,  but  to  amount  to  payment  of  so  much  of  the  occupier's 
rent.  Here,  by  the  same  means,  all  the  plaintiff's  rent  had  been  paid 
but  5/.  10^.,  notwithstanding  which  the  defendant  distrains  for  251.',  he 


5  Bingham^  406.  481 

is,  therefore,  clearly  liable  on  the  count  which  states  the  excessive  dis- 
tress in  that  way.  The  substantial  question  here  is,  Was  more  than  5/. 
10,y.  due  to  the  defendant  ?  for  that  had  been  offered,  and  the  jury  find 
that  that  was  all  he  was  entitled  to.  Several  of  the  counts  are  applicable; 
and  if  the  whole  distress  were  wrongful,  the  count  in  trover  is  of  itself 
sufficient,  as  was  established  in  Branscomb  v.  Bridges,  1  B.  &  C.  145. 

Park  J.  It  is  quite  clear  this  was  not  a  voluntary  payment.  The 
plaintiff  was  all  along  liable  to  a  distress  by  the  ground  landlord,  and  if 
time  had  not  been  given,  would  have  been  distrained  on. 

Then,  it  has  been  expressly  decided  in  Sapsford  v.  Fletcher,  and 
Taylor  v.  Zaviira,  that  the  occupier  is  entitled  to  deduct  from  his  own 
rent,  payments  so  made.  But  it  has  been  argued  that  he  cannot  deduct, 
from  rent  growing  due,  payments  for  the  ground-rent  of  an  antecedent 
half  year,  and  Andy^eivs  v.  Hancock  has  been  referred  to.  But  in  that 
case  the  occupier  for  several  years  subsequently  to  paying  the  ground- 
rents,  made  an  entire  payment  of  his  own  rent,  and  then  sought  to  de- 
duct the  ground-rents  so  paid  from  a  subsequent  year's  rent.  Here  the 
plaintiff  seeks  to  make  the  deduction  from  the  first  payment  of  rent  ac- 
cruing due  after  the  ground-rent  had  been  demanded  and  paid.  It  would 
be  most  unjust  to  refuse  this,  and  the  rule  which  has  been  obtained 
must  be 

Discharged, 

BuRROUGH  J.  and  Gaselee  J.  were  absent. 


BRIDGES  V.  SMYTH,  —p.  410. 

A  landlord  having  treated  an  occupier  of  his  land  as  a  trespasser,  by  serving; 
him  with  an  ejectment,  cannot  afterwards  distrain  on  him  for  rent,  although 
the  ejectment  is  directed  against  the  claim  of  a  third  person,  who  comes  in  and 
defends  in  lieu  of  the  occupier,  and  the  occupier  is  aware  of  that  circumstance, 
and  is  never  turned  out  of  possession. 

Replevin.  Avowry  for  thirteen  and  a  half-years'  rent,  alleged  to 
be  due  at  Lady-day  1827,  on  a  demise  at  382/.  a  year,  payable  half- 
yearly. 

Pleas  non  tenuit,  riens  on  arricre,  and  eviction  in  September  1823, 
and  issue  thereon. 

At  the  trial  before  IJolroyd  J.  last  Suffolk  assizes,  it  appeared  that 
at  Michaelmas  1807,  Sir  Harvey  Smyth  demised  the  prfsmises  to 
plaintiff  for  ten  years,  at  a  rent  of  382/.  a  year.  A  part  of  them  was 
copyhold. 

He  fiierl  in  1811,  wlicn  the  propcrtv  (lescnndfMl  to  Mrs.  Brandt,  who 
died  in  PVbruary  1814,  and  deviscfl  it  to  dnfciiclant  for  her  life. 

The  defendant  refused  the  properly  as  devisee,  thinking  she  had  a 
title  as  heir;  but  as  she  delayed  to  take  any  steps  in  the  business,  the 
lady  of  the  manor  seized  the  copyhold  part  of  the  premises  on  the  de- 
fendant's neglect  to  be  admitted,  and  after  obtaining  judgment  in  an 
ejectment,  received  the  rent  of  thai  pnrf,  amounting,  froni  181.')  to  1820, 
to  200/.  a  year,  anrl  afterwards  to  170/. 

In  1S23,  Sir  V,.  H.  Smyth,  the  rrnl  heir  at  law  of  Mrs.  Brandt,  en- 
ro\iraged  by  the  defendant's  nrglort,  brought  an   ejoclnicnt  against  the 

VO.L.  XV.  (51 


482  Bridges  v.  Smyth.   H,  T.  1829. 

plaintifl",  and  sued  out  a  writ  of  possession  thereon  in  January  1824. 
Tlie  phiintiff,  however,  was  suflbred  to  remain  on  the  premises. 

Tlic  delendant,  thereupon,  in  February  1824,  with  a  view  to  defeat 
Sir  0.  H.  Smyth's  claim  to  the  property,  and  after  consulting  with  the 
plaintifl'  on  the  subject,  brought  an  ejectment  against  the  plaintiff",  the 
demise  in  which  was  laid  JNIarch  2,  1S14.  By  the  consent  rule  Sir  G. 
H.  Smyth  came  in  and  defended  as  landlord;  and  the  defendant  having 
by  means  of  her  title  as  devisee  recovered  in  the  action  (a),  a  writ  of 
possession  was  made  out  for  her  in  1827,  but  was  not  executed,  as  she 
refused  to  pay  the  sherifl^'s  poundage.  She  had  been  admitted  to  the 
copyhold  part  in  1825.  The  plaintiff  was  never  actually  out  of  the  pos- 
session of  the  premises;  but  the  defendant  had  notice  of  all  the  foregoing 
proceedings.  Nothing  was  proved  amounting  to  an  admission  by  the 
plaintiff  that  she  held  under  a  demise  at  382/.  a  year. 

It  was  objected  at  the  trial,  that  whatever  claim  the  defendant  might 
have  against  the  plaintiff  in  an  action  of  trespass  for  mesne  profits,  she 
had  no  right,  under  the  above  circumstances,  to  distrain;  and  the  learned 
Judge  being  of  this  opinion,  a  verdict  was  taken  for  the  plaintiff,  with 
leave  for  the  defendant  to  move  to  enter  a  verdict  for  such  sums  as  the 
Court  should  think  the  defendant  entitled  to. 

JVilde  Serjt.  having  obtained  a  rule  nisi  accordingly, 

Storks  Serjt.,  who  shewed  cause,  contended  that  at  the  time  of  the 
distress,  there  was  no  demise  subsisting  on  which  the  defendant  could 
avow  for  rent.  The  demise  from  Sir  H.  Smyth  had  expired  in  1S17, 
and  so  far  was  the  plaintiff  from  occupying  under  a  tenancy  continuing 
from  that  demise,  that  the  defendant  had,  by  her  demise  in  the  eject- 
ment, treated  her  as  a  trespasser  from  the  2d  of  March  1814.  Russell 
Serjt.  was  to  have  followed  on  the  same  side,  but  the  Court  called  on 

JVilde  to  support  his  rule.  The  plaintiff"  never  having  been  turned 
out  of  possession,  there  has  been  no  determination  of  her  tenancy;  and 
as  she  never  objected  to  the  terms  of  the  lease  which  expired  in  1817,  it 
must  be  inferred  she  continued  to  hold  on  the  same  terms.  The  eject- 
ment by  Sir  G.  H.  Smyth  does  not  affect  the  defendant's  right;  that  was 
a  proceeding  by  a  wrong-doer  without  title,  for  which  the  defendant  is 
in  no  way  responsible;  and  in  the  ejectment  by  the  defendant,  the  plain- 
tifi''s  name  was  only  inserted  for  form,  the  party  really  concerned  being 
Sir  G.  H,  Smyth,  [t  was  not  an  adverse  proceeding  against  the  plain- 
tiff", as  appears  by  the  defendant's  refusing  to  execute  a  writ  of  possession. 
There  is  no  evidence,  therefore,  to  support  the  plea  of  eviction.  As  to 
the  proceeding  by  the  lady  of  the  manor,  it  was  never  carried  to  the 
length  of  an  ouster;  it  does  not  appear  that  the  plaintiff  ever  communi- 
cated it  to  the  defendant;  and  the  defendant  was  subsequently  admitted 
to  the  copyhold  part  of  the  property;  so  that,  at  the  time  of  the  distress, 
the  plaintiff'  was  tenant  to  her  of  the  whole;  and  the  terms  under  which 
she  occupied  from  1807  to  1817  having  never  been  objected  to,  it  may 
be  presumed  she  consented  to  continue  on  the  same  terms. 

But  the  Court  were  clearly  of  opinion,  that  whatever  other  remedy 
might  be  open  to  the  defendant,  she  could  not  distrain  as  upon  a  contract 
between  lessor  and  lessee,  after  treating  the  plaintiff  as  a  trespasser  since 
1814  by  the  demise  in  the  ejectment  of  1824;  and  that  the  circumstance 
of  that  ejectment  having  been  directed  against  the  claim  of  Sir  G.H.Smyth 

See  Doe  d.  Smyth  v,  Smijth,  6  B.&  C.  112. 


5  Bingham,  414.  483. 

made  no  difference  in  the  case,  judgment  having  been  entered  up  against 
the  casual  ejector,  which  would  be  conclusive  against  the  tenant. 

Rule  discharged. 


VERE  and  Others  v.  GARDEN.— p.  413. 
A  plea  false  on  the  face  of  it  may  be  treated  as  a  nullity. 

The  plaintiffs  declared  on  two  bills  of  exchange,  due  the  5th  and  6th 
of  December  1828. 

The  defendant  pleaded  a  judgment  recovered  on  the  same  bills  in  the 
Michaelmas  term  preceding. 

The  plaintiff  having  treated  this  plea  as  a  nullity,  and  signed  judg- 
ment, the  plea  being  false  on  the  face  of  it, 

Andrews  Serjt.  obtained  a  rule  nisi  to  set  aside  the  judgment. 

Wilde  Serjt.,  for  the  plaintiffs,  relied  on  Lamb  v.  Pratt,  1  D.  &  R. 
577,  and 

The  Court  J  after  hearing  Andrews,  discharged  the  rule  with  costs. 


BRYANT  V.  Sir  JOHN  PERRING.— p.  414. 

A  defendant  may  plead  matter  puis  darrein  continuance,  notwithstanding  an  order 

to  rejoin  issuably. 

The  defendant  had  pleaded  a  release.  Tiie  plaintiff  replied  that  the 
release  was  conditional  on  the  defendant's  doing  certain  things  to  the 
satisfaction  of  A.  and  B. ,  and  alleged  non-fulfilment  of  the  condition.  On 
the  first  day  of  term,  he  ruled  defendant  to  rejoin  by  the  2Gth  of  Janu- 
ary. 

On  the  26th,  the  defendant  obtained,  under  a  Judge's  order,  three  days 
further  time  to  rejoin,  upon  the  terms  of  rejoining  issuably,  and  taking 
short  notice  of  trial  for  the  last  sittings  in  term. 

On  the  20tli,  A.  and  \\.  gave  a  certificate  of  tiie  defendant's  having 
performed  to  their  satisfaction  the  things  required,  and  this  certificate 
the  defendant  that  evening  pleaded  puis  darrein  continuance. 

The  plaintiff  thereupon  signed  judgment,  on  the  ground  that  the  de- 
fendant had  not  rejoined  issuably  witliin  the  time  limited. 

litisscll  Serjt.  having  obtained  a  rule  nisi  to  set  aside  liiis  judgment 
as  irregular, 

Jones  Serjt.  who  shewed  cause,  contended,  th.it  the  judi>;inpnt  was 
regular,  the  defendant  having  wholly  neglected  the  terms  of  the  Judge's 
order;  that  a  plea  ])nis  darrein  continuance  was  no  rejoinder  at  all,  nuich 
less  an  issuable  rejoinder;  that  such  a  pica  is  treated  with  the  same  strict- 
ness as  a  plea  in  abatement;  Martin  v.  IVi/vill,  I  Str.  4fM;  and  that  a  plea 
in  abatement  is  not  a  compliance  with  an  order  to  plead  issuably;  Kilwicfe 
V.  Maidman,  1  Burr.  59;  IVairstuffc  v.  Lonu;,  Barnes,  2ti3;  and  he 
likened  the  case  to  that  of  executors,  who  are  never  allowed  time  to  re- 
join, except  on  condilicjn  that  they  shall  not  confess  any  new  judg- 
ments.     Hut 

VliC  Court  held  that  this  was  a  mailer  altogrihcr  independent  r)f  the 


•184  Stewaud  v.  Williamson.  H.  T.  1829. 

Judge's  order,  insoiuucli  that  even  had  the  defendant  rejoined  issuahly, 
he  ini^hl  afterwards,  upon  ajit  occasion,  plead  puis  darrein  continuance. 

Rule  absolute. 


STEWARD  V.  WILLIAMSON.— p.  415. 

Where  a  jjavty  to  an  arbitration  under  a  rule  of  court  revoked  the  arbitrators'  au- 
thority upon  discovering  improper  conduct,  and  then  having  sued  for,  and  re- 
covered bv  action,  damages  for  the  matter  in  dispute,  went  lo  reside  in  Scotland, 
the  Court  refused  to  stay  execution  upon  the  application  of  the  adverse  party, 
■who  proposed  thereby  to  compel  him  to  appear  to  an  action  on  the  arbitration- 
bond,  the  arbitrator  having  awarded  against  him,  notwithstanding  the  revoca- 
tion of  authority. 

The  plaintiff  having  claims  against  the  defendant  for  the  hire  of  a  ship 
under  a  charter-party,  which  claims  the  defendant  disputed,  the  matters 
in  difference  were  referred  to  two  arbitrators  and  an  umpire,  and  the 
reference  was  made  a  rule  of  Court;  the  parties  having  executed  bonds 
to  abide  by  the  award,  in  the  penalty  of  3000/. 

On  the  26th  of  April,  some  days  after  the  parties  had  concluded  their 
respective  cases,  the  plaintiff  revoked  his  authority  to  the  arbitrators, 
and  went  to  reside  in  Scotland,  notwithstanding  which,  on  the  28th  of 
April,  one  of  the  arbitrators  and  the  umpire  made  an  award,  in  which 
they  found  that  nothing  was  due  from  the  defendant  to  the  plaintiff,  and 
ordered  the  plaintiff  to  pay  half  the  costs  of  the  arbitration. 

The  plaintiff  then  commenced  an  action  on  the  charter-party  in  this 
Court,  and  at  the  sittings  after  last  term  obtained  a  verdict  for  1500/., 
which  the  defendant  was  imable  to  set  aside. 
Tlie  plaintiff  having  now  sued  out  execution, 

Taddij  Serjt.,  upon  an  affidavit  slating  the  foregoing  facts,  and  also 
that  in  the  present  term  an  action  had  been  commenced  against  the  plain- 
tiff on  the  arbitration-bond,  but  that  it  was  impossible  to  serve  him  with 
process,  because  he  resided  in  Scotland  for  the  avowed  purpose  of  elu- 
ding it,  obtained  a  rule  nisi,  upon  paying  into  Court  the  monies  recov- 
ered, to  stay  the  proceedings  in  the  execution  till  the  further  order  of 
the  Court;  proposing  thereby  to  compel  the  plaintiff  to  appear  to  the 
action  on  the  arbitration-bond. 

Wilde  Serjt.  shewed  cause,  upon  an  affidavit  which  stated  that  the 
plaintiff  had  revoked  his  submission  in  consequence  of  the  corrupt  con- 
duct of  one  of  the  arbitrators,  and  specified  many  improper  acts,  savour- 
ing of  bribery. 

Taddy  and  Spankie  Serjts.  in  support  of  the  rule,  endeavoured  to 
explain  the  arbitrators'  conduct,  but  the  facts  were  too  strong.  They 
contended,  however,  that  it  was  a  contempt  of  the  rule  of  Court  for  the 
plaintiff  to  revoke  his  submission,  and  that  instead  of  doing  so  he  should 
have  brought  forward  the  facts  on  which  he  relied,  as  an  answer  to  an 
application  for  an  attachment,  or  have  applied  to  the  Court  under  the 
statute  of  William. 

Best.C.  J.  I  do  not  think  it  a  contempt  to  revoke  an  order  of  re- 
ference, when  the  arbitrator  has  indirectly  taken  a  bribe.  As  to  the  re- 
medy for  corruption  in  an  arbitrator  under  the  statute  of  William,  that 
does  not  deprive  the  party  of  the  power  of  rendering  it  unnecessary, 
by  revoking  the  order  in  the  fust  instance.  The  rule  must  be  dis- 
charged. 


5  Bingham,  415.  485 

Park  J.  This  ia  an  application  of  some  novelty,  amounting  in  ef- 
fect to  a  special  distringas,  and  calling  on  us  to  levy  issues  to  the  amount 
of  1500/.;  that  is,  to  tie  it  up  in  the  hands  of  the  officer  of  the  Court 
until  the  party  applied  against  shall  enter  his  appearance. 

If  he  had  withdrawn  from  the  process  of  the  Court  there  might  per- 
haps have  been  some  colour  for  the  application;  but  here  he  has  been 
residing  in  Scotland  for  some  time,  and  if  the  parties  applying  thought 
the  revocation  wrong,  they  should  have  sued  on  the  bond  at  once,  and 
not  have  lain  by  for  two  years.  It  is  a  most  singular  argument  to  say 
that  the  party  is  to  go  on  with  the  arbitration  after  the  arbitrator  has  re- 
ceived money  from  the  other  side,  because  he  may  afterwards  obtain  re- 
dress on  the  statute  of  William. 

There  is  no  colour  for  this  application. 

BuRROuGH  J.  and  Gaselee  J.  agreed  that  there  was  no  ground  for 
the  application,  and  the  rule  was  discharged. 

Rule  discharged  accordingly. 


BOUSFIELD  and  Another  v.  GODFREY p.  4 IS. 

Where  defendant  surreptitiously  obtained  possession  of  an  unstamped  agree- 
ment executed  by  himself  and  the  plaintiff  (thereby  preventing  the  plaintiff 
from  affixing  a  stamp  as  he  had  intended,  in  twenty-one  days  after  execution), 
and  then  swore  that  he  had  lost  the  agreement,  the  Court  ordered  that  he 
should  produce  a  copy  in  his  possession  to  the  plaintiff,  and  that  if  the  plaintiff 
produced  that  copy  stamped  at  the  trial,  the  defendant  should  be  precluded 
from  producing  the  origina.1. 


DOE  dem.   FISHER  v.  GILES  and  Others.— p.  421. 

Where  the  mortgagor  remains  in  possession,  and  the  money  is  not  repaid  on  the 
day  stipulated,  the  mortgagee,  who  has  a  power  of  entry  and  sale  on  non-pay- 
ment, may  fject  the  mortgagor  without  notice  to  quit,  or  demand  of  possession. 

Ejectment.  At  the  trial  before  Vauqhan,  B.,  Shropshire  Sum- 
mer assizes  182S,  it  appeared  that  by  a  mortgage  deed  bearing  date  19lh 
February  1827,  the  defendant,  Giles,  conveyed  the  {)roperly  in  ques- 
tion to  Fisher,  with  a  power  to  enter  and  sell  it  absolutely  in  case  G200/. 
borrowed  on  the  security  of  the  property  should  not  Ijc  paid  with  inte- 
rest on  the  lOlh  of  August  1827. 

The  money  not  liaving  been  fiaid,  Fislier  commenced  this  action,  and 
laid  the  deniLx!  on  tlie2  1th  of  September  15J7,  up  to  which  day  no  in- 
terest was  paid. 

No  notice  to  rjuit  was  given,  nor  any  demand  of  possession  ever 
made. 

Thereupon  it  was  objected,  that  a  mortgagor  in  possession  is  a  tenant 
to  the  mortgagee;  Parlri(/gc  v.  Jirre,  G  B.  &  A.  001;  and,  if  only  a 
tenant  at  will,  cannot  be  treated  as  a  trespasser  without  a  pievious  de- 
termination of  the  mortgagee's  will  bv  a  (Icniand  of  possession.  A  ver- 
dict was  taken  for  the  lessor  of  the  plainlilf,  with  Irave  for  the  defend- 
ants to  move  to  set  it  aside  and  enter  a  nonsuit. 

rVo.y.v  Serjt.  having  obtained  a  rule  nisi  on  the  aulhoriiy  of  Pcirlrit/ge 
V.  Bcrr, 


486  Doe  d.  Fisher  v,  Giles.  H.  T.  1829. 

Russell  Serjt.  shewed  cause,  and  cited  Keech  y.  Hall,  Dougl.  21  j 
Moss  V.  Gallimore,  Ibid.  282;  Birch  v.  Wright,  1  T.  R.  382. 

Cross,  contra,  cited  Co.  Lit.  55.  b. ;  Keech  v.  Hall;  Thunder  v. 
Belcher,  3  East,  149;  Fowseley  v.  Blackman,  Cro.  Jac.  659;  Smartle 
V.  JVilliams,  1  Salk.  245;  Goodtitk  v.  Herbert,  4T.R.  680. 

Cwr.  af/i'.  vm//. 
Best  C.  J.  This  was  an  action  of  ejectment,  brought  by  a  mort- 
gagee against  a  mortgagor.  By  the  mortgage-deed,  if  the  principal  sum 
remained  unpaid  on  a  given  day,  it  was  covenanted  that  the  mortgagee 
might  enter,  and  if  not  paid  within  thirty  days  from  the  day  fixed  for 
its  payment,  he  was  at  liberty  to  proceed  to  a  sale  of  the  estate  without 
the  concurrence  of  the  mortgagor. 

This  action  was  brought  two  days  after  the  day  on  which  the  mort- 
gagee had  a  right  to  re-enter  for  non-payment,  and  before  any  interest 
had  been  paid  on  the  money  lent.  It  was  insisted  at  the  trial  that  an 
ejectment  could  not  be  brought  until  the  mortgagee  had  required  the 
mortgagor  to  deliver  up  possession  of  the  estate. 

My  Brother  Vaughan,  who  tried  the  cause,  reserved,  for  the  consi- 
deration of  the  Court,  the  question.  Whether  this  action  could  be  main- 
tained without  a  demand  of  the  possession  of  the  estate  previous  to  the 
service  of  an  ejectment  ? 

It  has  never  yet  been  decided  that  it  is  incumbent  on  a  mortgagee  to 
make  such  a  demand  previous  to  the  commencement  of  an  action  of 
ejectment  against  the  mortgagor.  In  Partridge  v.  Bere,  which  was  an 
action  brought  by  the  plaintiff  for  an  injury  to  his  reversion,  the  Court 
thought  that  a  mortgagee  might  describe  himself  as  a  reversioner,  the 
mortgagor  being  in  possession  of  the  estate,  and  said  that  he  was  a  te- 
nant within  the  strictest  definition  of  the  word.  This  case  comes  nearer 
to  the  present  than  any  I  have  been  able  to  find. 

But  this  was  not  a  case  between  the  mortgagee  and  the  mortgagor  in 
which  the  Courts  were  called  upon  to  decide  what  are  the  rights  of  the 
one  against  the  other.  The  defendant  in  that  case  was  a  wrongdoer, 
and  had,  therefore,  no  right  to  object  to  the  plaintiff  calling  himself  a 
reversioner  as  long  as  he  permitted  the  mortgagor  to  be  in  possession  of 
the  land. 

It  has  been  argued  that  the  mortgagor  is  tenant  at  will  to  the  mort- 
gagee; and,  therefore,  the  latter  can  maintain  no  action  against  the  for- 
mer till  that  tenancy  is  determined.  Lord  Mansfield,  in  the  case  of 
Moss  V.  Gallimore,  said,  '*  That  a  mortgagor  was  not  properly  a  tenant 
at  will  to  the  mortgagee,  for  he  is  not  to  pay  him  rent.^^  In  Birch  v. 
fVright  Mr.  Justice  Buller  says,  "A  mortgagor  is  not  considered  as  a 
tenant  at  will  in  those  proceedings  which  are  in  daily  use  between  a 
mortgagor  and  a  mortgagee;  I  mean  in  ejectments  brought  for  the  re- 
covery of  mortgaged  lands." 

This  opinion  of  Mr.  Justice  Buller  is  directly  to  the  point  now  in 
question.  The  words  of  Lord  Mansfield,  "  he  is  not  to  pay  him  rent," 
are  very  important.  The  payment  of  rent  countenances  a  right  to  the 
possession  of  the  land;  the  payment  of  interest  does  not;  it  relates  to 
the  debt,  and  not  to  the  property  pledged.  A  landlord  is  not,  by  taking 
rent,  to  induce  a  man  to  sow  the  land,  and  then  turn  him  out  before  he 
can  take  the  crop;  and  therefore,  a  tenant  at  will  has  emblements,  or 
may  take  the  crop  for  his  own  use.  Co.  Lit.  55.  b.  Lord  Mansfield 
says,  in  Keech  v.  Hull,  "'A  mortgagor  is  not  entitled  tu  reap  the  crop 


5  Bingham,  421.  487 

as  other  tenants  at  will  are,  because  all  is  liable  to  the  debt."  A  mort- 
gagor resembles  a  person  who  has  executed  a  statute  or  recognisance. 
Whatever  these  persons  do  to  give  value  to  the  property  under  pledge, 
is  done  for  the  benefit  of  the  creditor. 

In  Bardens  and  TFi(hi7igton's  case,  2  Leonard,  54,  A.  is  bound  in 
a  statute  to  B.,  and  sows  the  land;  B.  extends  the  lands,  which  are  de- 
livered to  him  in  execution.  It  was  adjudged,  that  the  conusee  shall 
have  the  corn  sown.     The  same  law  in  the  case  of  a  recognizance. 

If  the  mortgagor  is  not  a  tenant  at  will,  then  the  law  relative  to  tenants 
at  will  has  no  application  to  this  case. 

We  must  look  at  the  covenant  he  has  made  with  the  mortgagee  to 
ascertain  what  his  real  situation  is.  We  find  from  the  deed  between 
the  parties,  that  the  possession  of  his  estate  is  secured  to  him  until  a 
certain  day,  and  that  if  he  does  not  redeem  his  pledge  by  that  day,  the 
mortgagee  has  a  right  to  enter  and  take  possession.  From  that  day  the 
possession  belongs  to  the  mortgagee.  And  there  is  no  more  occasion 
for  his  requiring  that  the  estate  should  be  delivered  up  to  him  before  he 
brings  an  ejectment,  than  for  a  lessor  to  demand  possession  on  the  de- 
termination of  a  term.  The  situation  of  a  lessee  on  the  expiration  of  a 
term,  and  a  mortgagor  who  has  covenanted  that  the  mortgagee  may  en- 
ter on  a  certain  day,  is  precisely  the  same. 

If  this  situation  exposes  mortgagors  to  any  hardship,  they  must  guard 
against  it  by  an  alteration  in  the  terms  of  the  mortgage  deeds.  Mort- 
gagees, however,  do  not  find  it  to  their  advantage  to  enter  upon  the 
estates  if  they  can  get  their  interest  regularly  paid;  for  from  the  time 
that  they  get  possession,  their  situation  is  far  from  desirable,  from  the 
constant  state  of  preparation  that  they  must  be  in  to  account  to  the  mort- 
gagor whenever  he  shall  be  ready  to  discharge  the  mortgage-debt. 

This  circumstance  has  rendered  any  security  for  the  mortgagor  against 
hasty  actions  of  ejectment  unnecessary. 

The  rule  for  a  nonsuit  must  be  discharged. 

Rule  discharged  accordingly. 


END    OF    TIILAnr    TERM. 


.^; 


CASES 

ARGUED  AND  DETERMINED 

IN   THE 

COURT   OF    COMMON   PLEAS, 

AND  OTHER  COURTS, 

IN 

EASTER  TERM, 

In  the  Tenth  Year  of  the  Reign  of  George  IV. — 1829. 

BURNS  V.  CARTER  and  Others.— p.  429. 

The  metropolis  paving  act,  57  G.  3.  c.  29.  s.  136.  has  repealed  the  Clink  liberty 
paving  act,  52  G.  3.  c.  14.  as  to  the  time  of  commencing  actions. 


KNIGHT  V.  HUNT.— p.  432. 

Plaintiff  had  refused  to  sign  an  agreement  to  receive  of  his  debtor  a  composition 
of  10*.  in  the  pound;  but  the  debtor's  brother  offering  to  supply  him  with  coal 
to  the  amount  of  the  other  10s.,  he  signed  the  composition  agreement. 

The  other  creditors  knew  nothing  of  the  coal  transaction. 

Plaintiff  having  been  supplied  with  the  coals, 

Held,  that  he  could  not  recover  upon  a  promissory  note  for  the  amount  of  the  10*. 
composition. 

One  William  Watson  being  in  bad  circumstances,  proposed  to  com- 
pound with  his  creditors  for  10^.  in  the  pound. 

The  plaintiff,  to  whom  he  owed  300/.,  refused  to  accede  to  the  propo- 
sal. Whereupon  John  Watson,  W.  Watson's  brother,  went  to  the  plain- 
tiff, and  spontaneously  agreed  at  his  own  cost  to  supply  the  plaintiff  with 
coals  to  the  amount  of  150/.  if  he  would  sign  the  agreement  for  William 
Watson's  composition.  The  plaintiff  consented,  and  then  signed  an 
agreement,  dated  October  20,  1818  ;  <'  To  take  lOs.  in  the  pound,  to  be 
paid  with  the  other  creditors."  The  plaintiff  signed  the  last,  but  the  ar- 
rangement about  the  coals  was  not  known  to  the  other  creditors. 

For  the  lO.y.  in  the  pound  the  plaintiff  afterwards  agreed  to  take  the 
joint  and  several  promissory  note  of  William  Watson,  one  Aldred,  and 
the  defendant,  payable  on  demand,  with  interest. 

The  note  was  given,  and  bore  date  November  1,  1818.  John  Watson 
furnished  the  plaintiff  with  coals  to  the  amount  agreed  on,  and  interest 
was  paid  on  the  promissor}'-  note. 


5  Bingham,  432.  489 

The  note,  however,  remaining  unpaid,  the  plaintiff  at  length  put  it  in 
suit  against  the  defendant. 

At  the  trial  before  Littledale  J.  last  Winchester  assizes,  a  verdict  was 
upon  proof  of  the  foregoing  facts,  found  for  the  defendant,  on  the  ground 
that  the  plaintiff  had,  by  the  amount  in  coals  delivered  by  John  Watson, 
received  as  much  as  the  other  creditors,  and  that  any  contract  for  more 
was  void  as  a  fraud  on  them. 

Bompas  Serjt.  now  moved  to  set  aside  this  verdict,  and  for  a  new 
trial.  He  contended  that  the  coal  transaction  was  no  fraud  on  the  other 
creditors,  and  he  distinguished  the  case  from  all  the  cases  on  composition 
agreements  (beginning  with  Cackshott  v.  Bennett,  2  T.  R.  763,  and 
ending  with  Thomas  v.  Courtney,!  B.  &  A.  1,)  in  the  following  respects; 

1st,  That  this  was  not  by  or  at  the  instigation  of  the  insolvent,  nor 
even  at  the  request  of  the  creditor,  but  was  a  spontaneous  and  honourable 
offer  on  the  part  of  a  relation  of  the  debtoi-,  to  make  up,  out  of  his  own 
substance,  a  loss  occasioned  by  his  brother. 

2(lly,  That  it  was  attended  with  no  detriment,  either  to  the  insolvent 
or  the  creditors  at  large;  and  the  ground  of  many  of  the  decisions  was, 
the  injury  to  the  general  body  of  creditors. 

3dly,  That,  inasmuch  as  the  plaintiff  was  the  last  to  sign,  the  other 
creditors  could  not  have  been  influenced  by  his  supposed  concurrence. 

Lastly,  he  contended,  that  though  an  agreement  for  a  particular  credi- 
tor to  receive  more  than  the  others  was  void  in  itself,  and  though  it  might 
under  some  circumstances  avoid  a  release  given  to  the  debtor,  yet  it  had. 
never  been  holden  to  avoid  the  debtor's  stipulation  to  pay  the  sum  spe- 
cified in  the  composition  deed.  The  plaintiff  might,  perhaps,  have  fail- 
ed to  enforce  John  Watson's  agreement  to  supply  him  with  coals,  but 
that  would  not  affect  the  validity  of  the  debtor's  agreement  to  pay  10,s. 
in  the  pound,  or  of  a  note  given  in  pursuance  of  such  agreement. 

IJkst  C.  J.  There  is  not  the  sliglitest  pretence  for  this  motion.  These 
ogrcemonts  for  composition  with  creditors  rcfpiire  the  strictest  good 
faith.  If  I  see  a  man,  acquainted  with  the  circumstances  of  the  debtor, 
agreeing  to  sign  a  paper,  under  which  he  is  to  be  satisfied  with  10*.  in 
the  pound,  I  conclude  he  has  exercised  a  judgment  on  the  subject.  Am 
I  not  cheated  if  he  procures  another  to  give  him  10*.  more?  Perhaps 
there  is  no  case  exactly  like  this;  but  as  no  two  cases  are  ever  alike  in  all 
respects,  the  best  way  is  to  extract  a  principle  from  analogous  decisions, 
and  the  principle  to  be  extracted  from  all  the  cases  on  this  subject  is,  that 
a  man  who  enters  into  an  engagement  of  this  kind  is  not  to  be  deceived. 

It  has  been  argued,  that  here  the  debtor  was  not  injnnMl,  nor  the  funds 
for  other  creditors  rendered  less  available.  No  doubt  those  topics  have 
been  urged  in  some  of  the  cases;  but  one  question  always  is,  VVIjether 
the  judgment  of  the  crcflitors  has  been  influenced  by  the  supposition,  that 
all  are  to  suffer  in  the  same  proportion?  That  was  the  case  here.  It  is  a 
very  different  thing,  where,  without  any  previous  contract,  a  debtor 
after  having  rlischnrged  his  engagements  under  the  composition  dee»l, 
])onour;il)Iy  adfls  the  remainder.  A  transaelion  of  that  kind  is  riearlv  dis- 
tinguishable from  the  prescmt,  where,  by  previous  and  express  contrart, 
the  whole  of  the  debt,  or  an  equivalent,  is  secured  to  a  particular  ercdit- 
f)r.  Here  the  plaintiff  has  had  his  lO.y.  in  the  pound  in  coal,  and  he  can- 
not have  it  again  in  monev. 

Pakk  J.  It  seems  to  me  only  necessary  to  distinguish  between  a  gra- 
tuitous gift  after  the  payment  imder  the  composition,  and  a  previous  un- 

voi,.  XV.  G2 


490  Pkoyis  v.  Reed.  E.  T.  1829. 

ilcrstanding  that  a  particular  creditor  shall  receive  more  than  the  others. 
Here  there  was  such  a  prdvious  understanding,  and  the  verdict  was  per 
fectlyPproper. 
BuRRouaii  J.  and  Gaselee  J.  concurring, 

The  rule  was  refused 


PRO  VIS  andROWE  v.  REED.— p.  435. 

1.  Where  one  of  the  attesting  witnesses  to  a  will  is  dead,  witnesses  maybe  called 
to  his  character. 

2.  Declarations  of  the  testator  in  subversion  of  a  will  are  not  admissible  in  evidence, 
though  both  parties  claim  under  him,  and  though  they  are  offered  with  a  view 
to  shew  the  manner  in  which  the  will  was  executed. 

Writ  of  entry  sur  abatement. 

The  demandants  claimed  as  heirs  of  Henry  Sara.  The  defendant,  (who 
had  been  in  possession  twenty-seven  years,)  under  his  will. 

The  demandants  proposed  to  shew  that  the  will  was  executed  in  the 
presence  of  only  two  attesting  witnesses,  and  that  the  name  of  a  third 
was  added  after  the  death  of  the  devisor. 

At  the  trial  before  Gaselee  J.,  last  Cornwall  assizes,  the  demandant's 
pedigree  having  been  admitted,  the  learned  Judge  ruled  that  the  defen- 
dant was  entitled  to  begin,  and  he  having  by  one  of  the  attesting  witness- 
es (a  servant  of  the  devisor)  established  the  due  execution  of  the  will  in 
the  presence  of  three  witnesses,  one  of  whom  was  Mr.  Scott,  the  attor- 
ney who  had  prepared  the  will,  but  was  since  dead,  as  well  as  the  third 
attesting  witness, 

The  demandants  called  a  person  who  deposed  that  the  day  after  the 
death  of  the  devisor,  Mr.  Scott  said  to  him,  "There  is  an  oversight;  the 
will  is  not  properly  executed;  but  it  is  not  of  much  consequence:  we  can 
manage  it  between  ourselves;"  that  he  then  called  a  female,  and  desired 
her  to  write  her  name  under  those  of  the  two  attesting  witnesses. 

The  demandants  then  proposed  to  give  evidence  of  the  following 
among  other  declarations  made  by  the  devisor  touching  the  will: — 

"  Tom  Reed  (the  defendant)  has  been  trying  to  get  my  property,  but 
neither  he  nor  his  shall  have  it.  Scott  drew  up  a  paper,  and  they  got  me 
to  sign  it;  but  never  fear,  I  know  that  it  is  not  worth,  to  Reed,  one 
farthing." — "JVIy  land  goes  to  my  own  family.  Peggy,  (one  of  the  de- 
mandants), remember  the  land  is  yours;  if  I  don't  live  to  make  my  will, 
when  I'm  dead  see  that  you  are  righted." 

The  learned  Judge  rejected  the  evidence,  and  on  the  part  of  the  de- 
fendant admitted  witnesses  to  speak  to  the  character  of  Scott,  the  attor- 
ney, who  had  prepared  the  will. 

His  character  being  of  the  highest  order,  the  jury  found  a  verdict  for 
the  defendant;  whereupon 

Taddy  Serjt.  now  moved  for  a  new  trial,  on  the  ground  that  evidence 
of  the  testator's  declarations  had  been  improperly  rejected,  and  evidence 
of  the  character  of  the  attesting  witness  improperly  admitted.  He  cited 
Bull.  N.  P.  295.  {Gaselee  J.  The  same  evidence  was  admitted  in  Doe  d. 
Walker  v.  Slephensnn,  3  Esp.  N.  P.  C.  284;  and  that  case  was  recog- 
nized in  Bishop  of  Durham  v.  Beaumont,  1  Campb.  210.] 

Best  C.  J,  Two  objections  have  been  made  to  the  verdict  in  this 
cause:  that  evidence  has  been  rejected  which  ought  to  have  been  receiv- 


5  BixGHAM,  435.  491 

ed,  and  evidence  received  which  ought  to  have  been  rejected.  It  has 
been  insisted,  that  declarations  of  the  testator  were  admissible  in  evi- 
dence to  shew  that  the  will  he  had  executed  was  not  valid;  but  no  case 
had  been  cited  in  support  of  such  a  position,  and  we  shall  not  for  the  first 
time  establish  a  doctrine  which  would  render  useless  the  precaution  of 
making  a  will;  for  if  such  evidence  were  admissible,  some  witness  would 
constantly  be  brought  forward  to  set  aside  the  most  solemn  instruments. 
Such  a  doctrine  would  be  not  only  in  the  highest  degree  inconvenient, 
but  contrary  to  the  first  principles  of  evidence,  according  to  which  the 
will  itself  is  the  best  evidence  which  the  nature  of  the  case  supplies.  It 
has  been  urged,  however,  that  the  declarations  are  admissible  as  having 
been  made  by  one  under  whom  both  of  the  contending  parties  claim,  up- 
on the  same  principle  as  the  declarations  of  a  common  ancestor.  Decla- 
rations of  a  common  ancestor  as  to  the  state  of  his  family,  pedigree,  and 
other  matters  peculiarly  within  his  knowledge,  are  undoubtedly  admis- 
sible in  evidence;  but  they  are  wholly  different  from  declarations  tending 
to  impeach  the  validity  of  a  written  instrument,  which  have  never  yet 
been  received;  and  I  am  clearly  of  opinion  were  properly  rejected  in  the 
present  instance. 

Then  with  regard  to  the  imputations  on  the  character  of  Scott,  the  at- 
testing witness  who  prepared  the  will;  if  the  demandants  had  merely  im- 
puted to  him  an  error  in  judgment,  perhaps  the  evidence  would  not  have 
been  admissible;  but  if  it  were  imputed  to  Scott  that,  having  caused  a 
will  to  be  executed  imperfectly,  he  had  added  an  attesting  witness  after 
the  death  of  the  testator; — that  in  effect  he  had  committed  a  forgery; — 
if  his  moral  character  were  thus  attacked,  those  who  were  interested  in 
it  had  a  right  to  defend  it.  A  passage  has  been  cited  from  Buller's  Nisi 
Prius,  and  it  has  been  contended  that  there  is  no  distinction  between  the 
case  of  an  attesting  witness  to  a  will,  and  the  witnesses  to  bills,  notes, 
and  the  like.  But  bills  are  usually  instruments  of  a  recent  dale,  while 
wills  are  often  undisputed  till  all  the  parties  present  at  the  execution  of 
them  have  ceased  to  be  in  existence.  The  present  writ  of  entry  was  sued 
out  no  less  than  twenty-seven  years  after  the  time  of  the  transaction  to 
which  it  relates.  In  such  a  case  there  is  no  way  of  protecting  the  charac- 
ter of  a  witness  other  than  the  admitting  such  evidence  as  has  been  here 
received.  In  many  cases  necessity  forms  the  law.  The  necessity  uf  ad- 
mitting the  evidence  in  this  case  is  manifest,  and  the  two  decisions  which 
have  been  cited,  one  of  them  from  no  less  an  authoiity  than  Jjord  Ke?i- 
1/on,  are  clearly  in  point.  I  have  repcatetlly  tendered  such  evi(l(:nce  my- 
self in  similar  cases  when  at  the  bar.  I  have  had  it  tendered  on  the  other 
side,  and  have  never  objected,  and  the  common  j)ractice  of  Westminster 
Hall  has  always  been  to  receive  it.  That  practice,  jicrhaps,  is  belter  evi- 
dence of  the  law  even  than  decided  cases;  and  the  Court,  therefore,  can- 
not grant  the  rule  which  has  been  prayed  on  the  part  of  the  demandants. 

Pakk  J.  I  am  of  the  same  opinion  on  both  points.  The  evidence 
of  declarations  of  the  testator  incompatible  with  tlie  validity  of  the  will, 
was  propr-rly  rojccted.  Wben  the  bjgislatnro  has  taken  such  care  to 
prevent  frauds  in  wills,  and  when  it  is  cunsicUired  how  easily  dcclar'*- 
tions  may  be  ext(irteil  by  artful  persons  after  the  intelkcl  of  a  l(!stalor 
has  been  impaired  by  time,  it  would  be  most  miscliievoiis,  and  a  viola- 
tion of  all  established  principles,  to  allow  such  declarations  to  be  receiv- 
ed in  evidence. 

Then,  the  testimony  to  the  ch.iraclcr  of  Scott  was  properly   nhnitlt  J 


492  WiTiiiNUTON  I'.  Hekuini;.  E.  T.  1829. 

according  to  the  general  understanding  and  practice  of  Westminster  Hall 
lor  many  years,  and  according  to  decided  cases. 

BiniROUGH  J.  referred  to  a  case  tried  before  him  recently  at  the 
Exeter  assizes,  Dot  d.  Teage  v.  Wood^  where  evidence  of  the  same 
kind  was  admitted  to  establish  the  character  of  a  deceased  attesting 
witness  to  a  will. 

Gaselee  J.  concurring  with  the  rest  of  the  Court,  the  rule  was 

Refused. 


COE  V.  CLAY.— p.  440.  *' 

He  who  lets,  agrees  to  give  possession,  and  if  he  fails  to  do  so,  the  lessee  may  re- 
cover damages  against  him,  and  is  not  driven  to  bring  an  ejectment.. 

The  defendant  had  agreed  to  let  the  plaintiff  certain  premises  per 
verba  de  praesenti;  and  this  was  an  action  for  not  letting  him  into  pos- 
session, which,  a  preceding  occupier  having  wrongfully  refused  to  quit, 
the  defendant  was  unable  to  effect. 

At  the  trial  before  Vaug-han  B.,  last  Cambridge  assizes,  the  agree- 
ment having  been  proved,  it  was  objected  on  behalf  of  the  defendant, 
that  the  plaintiff  had  shewn  no  breach,  for  that  the  agreement  amount- 
ing to  an  actual  demise  of  the  premises,  the  plaintiff  had  an  interest  upon 
which  he  might  have  brought  an  ejectment,  and  it  was  no  default  in  the 
defendant,  if  a  person  not  claiming  under  him  committed  a  wrong  for 
which  the  plaintiff  had  a  distinct  remedy  by  ejectment.  Supposing  the 
law  to  be  otherwise,  every  one  who  made  a  new  demise  would  be  liable 
to  damages  if  an  obstinate  tenant  held  over. 

A  verdict,  however,  having  been  found  for  the  plaintiff. 

Peake  Serjt.  moved  to  set  it  aside  on  the  grounds  urged  at  the  trial; 
but 

The  Court  were  all  clearly  of  opinion,  that  he  who  lets,  agrees  to 
give  possession,  and  not  merely  to  give  a  chance  of  a  law  suit;  and  the 
breach  assigned,  being,  that  the  defendant  did  not  give  the  plaintiff  pos- 
session, the  rule  was 

Refused. 


DOE  dem.  DIXON  and  Another  v.  WILLIS  and  Another.— p.  44i; 

Where  commissioners,  under  an  enclosure,  made  an  allotment  in  respect  of  R.'s 
land  in  1824,  Held,  tliatthe  allotment  passed  by  a  suhsetjuent  conveyance  of  the 
land  in  1824,  although  the  commissioners'  award  was  not  executed  till  1827. 


WITHINGTON  v.  HERRING  and  Others.— p.  442. 

Defendants  entered  into  an  agreement  with  C.  to  carry  on  for  them  certain  mining 
speculations  in  America, — furnished  him  with  instructions, — a  letter  authorising 
him  to  draw  on  them  for  10,000/., — and  a  power  of  attorney  of  the  most  extensive 
description,  "to  take  and  work  mines,  to  purchase  tools  and  materials,  and 
erect  the  necessary  buildings,  and  to  execute  any  deeds  or  instruments  he 
might  deem  necessarv  for  the  purpose." 

C.  after  he  had  raised  10,0S0/,  under  the  letter  of  authority,  obtained  of  plaintiff 


5  Bingham, 442.  493 

in  America  1500/.  which  he  applied  to  the  defendants'  use,  and  for  the  amount, 
drew  bills  on  defendants,  which  he  indorsed  to  plaintiff.  He  did  not  shew  the 
letter  of  authority  to  the  plaintiff;  there  were  no  indorsements  on  it  of  sums  pre- 
viously raised,  and  it  did  not  appear  that  the  plaintiff  knew  that  any  money 
had  been  raised  before  by  C:  the  defendants  refused  to  accept  the  bills. 
Held,  that  plaintiff  was  entitled  to  recover  1500/.  from  defendants,  as  money  had 
and  received  to  his  use. 

The  defendants,  merchants  in  the  city  of  London,  being  about  to 
speculate  in  mining  concerns,  entered  into  the  following  agreement  with 
Mr.  John  Crablree,  and  then  furnished  him  with  the  letter  of  instruc- 
tions, the  letter  authorizing  him  to  draw  on  them,  and  the  power  of  at- 
torney set  forth  in  the  following  pages. 

"  INIemorandum  of  agreement  between  Mr.  John  Crabtree  and  JNIessrs. 
Herring,  Graham,  and  Povvles. 

"Messrs.  Herring,  Graham,  and  Powles,  being  desirous  to  enter  into 
contracts  for  working  such  of  the  mines  in  Peru  as  may  offer  suitable 
encouragement  for  doing  so,  with  the  view  of  forming  an  association 
for  the  subsequent  performance  of  such  contracts,  it  is  agreed  that  Mr. 
Crabtree  shall  proceed  to  Peru  by  the  first  Jamaica  packet,  to  carry  this 
object  into  effect,  if  he  shall  find  it  practicable  and  expedient  to  do  so. 

"Mr.  Crabtree  shall  be  furnished  by  Messrs.  Herring,  Graham,  and 
Powles  with  their  power  of  attorney,  authorising  him  to  enter  into  such 
j)roposed  contracts  on  their  behalf,  which  he  engages  to  use  in  confor- 
mity with  the  instructions  he  may  from  time  to  time  receive  from  them. 

"  Messrs.  Herring,  Graham,  and  Powles  shall  defray  all  Mr.  Crab- 
tree's  reasonable  travelling  expenses,  and  expenses  of  living  during  the 
continuance  of  this  mission. 

"Mr.  Crabtree  shall  receive  from  Messrs.  Herring,  Graham,  and  Powles 
for  his  remuneration  the  sum  of  1000/.,  and  if  this  mission  shall  occupy 
Mr.  Crabtree  more  than  a  twelvemonth  from  the  date  of  his  leaving 
London  to  embark  in  the  packet,  he  shall  receive  at  the  rate  of  1000/. 
per  annum  from  the  said  date. 

"  Mr.  Crabtree  siiall  further  receive  one  fifth  share  of  the  clear  profits 
which  Messrs.  Herring,  Graham,  and  Powles  may  make  by  such  con- 
tracts, or  by  forming  the  association  to  be  founded  on  the  contracts  to  be 
entered  into  by  him. 

"London,  1st  January  1825. 
"  Hkrring,  Graham,  and  Powles. 
"John  Craijtree." 

"London,  January  7th  ISS.'j. 

"  Dear  Sir, — We  have  now  to  request  your  attention  to  the  following 
instructions  on  the  objects  of  your  mission  to  Peru. 

"On  your  arrival  in  Peru,  your  first  care  will  necessarily  be  to  ascer- 
tain whether  the  political  condition  of  the  country  he  so  far  settled  as  to 
render  it  prudent  to  undertake  any  extensive  engagements  there.  Wc 
need  say  nothing  as  to  the  means  of  ascertaining  this  fimdamcntal 
point;  or  the  rules  by  which  you  should  be  g(»verned  in  deciding  it. 
You  know  the  character  of  the  people,  and  the  nature  of  the  country, 
and  you  will  have  the  best  channels  of  information  open  to  you.  We 
will  only  remark,  that  we  should  prefer  measures  being  delayed  so  long 
i?<  any  serious  doubts  on  this  head  may  remain  on  your  mind. 

"Presuming  this  point  salisruclurily  sctll-d,  your  next  olijecl  will  be 


941  WiTiiiNGTON  V.  Herring.  E.  T.  1829. 

to  make  engagements  in  our  name,  and  in  our  behalf,  for  working  such 
of  the  mines  as,  on  good  information,  you  may  learn  to  be  the  most  pro- 
mising. Among  other  considerations  the  following  will  deserve  your 
attention;  viz.  the  proximity  of  the  mines  to  water  communication,  so 
as  to  all'ord  convenient  means  of  transport  for  steam-engines  and  other 
machinery;  their  being  situated  in  a  neighbourhood  where  fuel  for  steam- 
engines  and  for  smelting  is  to  be  found,  and  where  labourers  acquain- 
ted with  mining  are  to  be  had;  and  the  salubrity  of  the  situation,  with 
a  view  to  the  employment  of  European  miners. 

"  The  way  in  which  mines  may  be  secured,  are  as  follows,  viz. 

"  First,  by  making  contracts  or  leases  with  the  government,  for  work- 
ing such  as  may  be  government  property.  In  this  way  we  have  en- 
gaged the  Mariquita  mines  from  the  Colombian  government.  Copy  of 
the  lease  or  contract  for  two  of  which  we  enclose  for  your  government. 
No.  1. 

"Secondly,  by  making  contracts  with  individuals  who  may  be  pro- 
prietors of  mines,  on  the  principle  of  undertaking  to  put  the  mines  at 
work,  giving  the  proprietors  a  certain  portion  of  the  nett  produce.  This 
portion  varies  according  to  the  quality  and  circumstances  of  the  mines. 
In  some  cases  one  third,  in  others  half,  and  in  others  two  thirds  being 
conceded  to  the  owners.  These  terms  apply  more  particularly  to  Mexi- 
co, which  mines  being  so  much  nearer  to  Europe,  are  necessarily  much 
more  desirable  to  English  capitalists.  We  should  think  that  in  no  case 
could  any  mine  proprietor  in  Peru  look  for  more  than  half  the  net  pro- 
ceeds of  the  mine.  The  term  of  such  contracts  should  be  twenty-one 
years^  We  enclose  for  your  government  (No.  2.)  the  copy  of  a  con- 
tract made  in  London,  for  working  a  mine  in  Mexico,  the  provisions  of 
which  are  considered  very  fair  on  both  sides.  We  should  recommend 
your  taking  this  contract  as  a  model  in  any  such  engagements,  it  having 
been  prepared  by  one  of  the  most  experienced  miners  in  England. 

*'  It  is  indispensable  that  we  take  the  entire  management  of  the  mine; 
and  very  much  for  tlie  interest  of  the  proprietors  themselves  that  we 
should  do  so. 

'*■  The  third  way  of  securing  mines  is,  by  taking  possession  of  such  as 
may  be  liable  to  be  denounced  by  having  been  abandoned  by  their  for- 
mer possessors.  This  is  the  most  desirable  way  of  obtaining  mines,  if 
practicable,  the  entire  possession  being  thereby  secured;  but  some  diffi- 
culty may  arise,  if  it  should  happen  (as  is  the  case  in  some  parts)  that 
none  but  citizens  can  denounce  mines.  It  will  be  so  much  the  interest 
of  the  government  to  draw  forth  the  resources  of  the  country,  that  every 
practicable  facility  may  reasonably  be  anticipated  from  them,  and,  per- 
iiaps,  if  the  name  of  a  citizen  be  necessary,  that  of  General  Miller  (who 
is  doubtless  a  naturalized  citizen  of  Peru)  may  probably  be  made  use  of 
by  making  an  arrangement  with  him  for  that  purpose.  Of  all  this  you 
will  be  best  able  to  judge  on  the  spot.  There  is  one  consideration,  how- 
ever, we  should  wish  you  to  bear  in  mind,  on  the  subject  of  abandoned 
mines,  and  that  is,  that  where  they  have  only  been  suspended  working 
by  the  temporary  difficulties  of  the  proprietors,  occasioned  by  the  strug- 
gle for  the  establishment  of  independence,  we  should  by  no  means  wish 
to  deprive  such  persons  of  the  possession  of  their  properly.  We  would 
much  ratlier  purchase  their  rights  cither  by  money  or  by  an  annual  al- 
lowance, than  take  advantage  of  their  misfortunes:  but  where  mines  ap- 
pear to  be  wholly  deserted  by  their  former  proprietors,  without  hope  of 


5  Bingham,  442.  495 

their  being  able  to  resume  the  working  them,  and,  consequently,  are 
liable  to  be  denounced  by  any  person  possessing  competent  means  for 
working  them,  we  see  no  objection  to  your  taking  measures  for  gaining 
possession  of  such  mines,  if  practicable. 

'^  We  need  hardly  suggest  to  you,  that,  in  whatever  manner  you  may 
obtain  mines,  whether  by  lease  or  contract,  or  possession,  it  will  be  very 
important  to  see  a  clear  legal  title  established,  that  we  may  be  going  on 
a  secure  foundation  in  this  respect. 

*'  As  to  the  locality  of  mines,  it  is  important  to  keep  in  view  that  the 
more  you  can  meet  with  (if  good)  in  one  district,  the  better,  for  the 
greater  convenience  of  management. 

"  As  it  may  be  important  to  make  advances  to  some  of  the  mine  pro- 
prietors on  the  execution  of  the  contracts  with  them,  we  enclose  (No.  3.) 
a  letter  of  credit,  authorizing  you  to  draw  on  us  for  10,000/.,  or  50,000 
dollars,  to  be  applied  to  this  or  the  other  purposes  of  this  undertaking. 

"If  you  succeed  in  making  the  proposed  engagements  for  mines,  you 
will  please  have  them  executed  in  four  parts,  and  send  three  to  us  by 
different  opportunities;  the  first  by  Mr.  JNIiller,  who  accompanies  you, 
and  who  will  in  that  case  return  with  all  possible  despatch,  and  the  other 
two  by  the  quickest  and  safest  occasions  you  can  find. 

"  You  will  at  the  same  time  forward  to  us  the  fullest  details  regarding 
the  mines  you  may  engage,  derived  from  persons  practically  conversant 
with  the  subject,  so  as  to  enable  us  to  judge  of  the  description  of  ma- 
chinery and  other  assistance  necessary  to  be  despatched  from  this  coun- 
try, which  will  be  immediately  forwarded. 

"  For  the  purpose  of  enabling  you  to  carry  these  instructions  into  ef- 
fect, we  enclose  you  our  power  of  attorney  (No.  4.) 

'•'  We  remain,  &c. 
"J.  Crabtree,  Esq.'*  "Herring,  Graham,  and  Powles." 

(No.  3.) 

"London,  January  7,  1825. 
"  Dear  Sir, — We  liereby  authorize  you  to  draw  upon  us  for  the  sum 
of  10,000/.  sterling,  or  50,000  Spanish  dollars,  and  we  undertake  to 
honour  your  drafts  accordingly.  "We  are,  &c. 

"  To  J.  Crabtree,  Esc^."  "  IIeiuung,  Graham,  and  Powles.*' 

(No.  4.) 
"To  all  persons  to  whom  these  presents  shall  come,  We,  Charles 
Herring,  William  Graham,  anil  John  I).  Powles,  of  the  city  of  London, 
merchants,  send  greeting:  Whereas  we  contemplate  entering  into  cer- 
tain undertakings  within  the  empire,  states,  territories,  dominions,  and 
dependencies  of  Peru,  in  South  America,  and  for  carrying  the  sajnc  into 
effect,  we  have  agreed  with  John  Crabtree,  of  the  city  of  London,  Gent., 
that  he  shall  proceed  to  Peru  with  such  powers  as  arc  hereinafter  dele- 
gated to  him,  Now  know  ye,  and  these  presents  witness,  that  we,  the 
said  Charles  Herring,  William  Graham,  and  J.  I).  Powles  have,  and  each 
and  evf.ry  of  us  hatli  made,  ordained,  nominated,  constituted,  and  ap- 
pointed, and  in  our  and  each  of  our  place  and  stead  i)ut  and  deputed, 
and  by  these  presents  do,  and  each  and  every  of  us  do  mako,  ordain,  no- 
minate, constitute,  and  appoint,  and  in  our  and  each  of  oiw  place  and 
stead,  put  and  depute,  and  by  these  presents  do  and  each  and  every  of 
us  doth  make,  ordain,  nominate,  constitute,  and  appoint  the  said  John 
Crabtree  to  be  our  and  each  of  our  true  and  lawful  attorney  for  us  and 


496  WiTiHNGTON  V.  Herring.  E.  T.  1829. 

each  of  us,  and  in  our  or  each  of  our  names  or  name,  or  in  the  name  of  our 
said  attorney, to  enter  into,  transact,  complete,  and  execute  all  such  nego- 
tiations, proposals,  contracts,  engagements,  or  agreements  which  our  said 
attorney  shall  in  relation  to  the  said  proj)osals,  undertakings,  or  any  of 
them,  deem  it  expedient  or  proper  to  enter  into,  transact,  complete,  and 
execute  with  the  government  or  governments  for  the  time  heing  of  the  said 
empire,  states,  territories,  and  dominions  of  Peru  and  their  dependencies 
in  South  America,  or  any  of  the  ministers,  officers,  hranches,  or  depart- 
ments thereof  respectively;  or  with  any  public  or  private  companies 
or  other  persons  entitled  to,  interested  in,  or  having  the  care,  super- 
intendancc,  management,  government,  agency,  controul,  or  direc- 
tion of  or  over  any  mine  or  mines,  vein  or  veins  of  ore  whatso- 
ever, situate  and  being,  or  which  may  hereafter  be  found  or  dis- 
covered, or  be  denounced  within  any  part  or  parts  of  the  aforesaid  em- 
pire, states,  territories,  or  dominions  and  their  respective  dependencies, 
for  the  purpose  of  obtaining  a  grant,  demise,  or  lease  of  any  such 
mines  or  veins,  or  of  any  lands  or  grounds  over  or  adjoining  the  same, 
or  for  the  purchase  of  any  ore  or  ores,  or  of  the  right  to  open,  dig, 
or  work  any  mine  or  mines,  or  to  smelt  and  refine  the  ores  thereof, 
or  any  other  ores,  or  otherwise  touching  or  concerning  the  management, 
conduct,  or  carrying  on  of  the  works  of  any  such  mines,  or  any 
other  works  or  undertakings,  or  in,  aljout,  or  relating  to  the  same,  or 
to  the  smelting  and  refining  of  the  ores  thereof,  or  any  other  ores,  and 
for  the  purposes  and  objects  aforesaid,  or  any  of  them,  or  in  relation 
thereto,  and  to  the  completion  thereof,  for  us  and  each  of  us,  and  in  our 
and  each  or  either  of  our  names,  and  as  our  and  each  of  our  acts  and 
deeds,  or  in  the  name  of  our  said  attorney,  to  enter  into,  make,  sign, 
seal,  execute,  and  deliver  such  deeds,  conveyances,  leases,  grants, 
covenants,  petitions,  memorials,  and  other  instruments,  acts,  and  writ- 
ings whatsoever  as  in  the  judgment  or  opinion  of  our  said  attorney  shall 
appear  requisite  or  expedient,  and  also  for  the  purposes  and  objects 
aforesaid,  or  any  of  them,  or  in  relation  or  incidental  thereto,  or  to 
any  of  them,  to  take  to  himself,  hire,  engage,  or  employ  all  such  en- 
gineers, surveyors,  agents,  collectors,  clerks,  artificers,  artisans,  work- 
men, and  other  persons,  and  at  such  salaries  and  rate  of  compensation 
or  recompense  as  our  said  attorney  shall  in  his  discretion  think  requi- 
site, proper,  or  expedient;  and  also  for  him,  our  said  attorney,  to  con- 
duct, manage,  superintend,  and  carry  on,  and  purchase  all  needful  and 
necessary  tools,  implements,  and  materials,  and  erect  and  establish  all 
proper  and  needful  buildings  and  other  works  for  the  conducting  and 
carrying  on  in  a  beneficial  manner  the  works  of  any  such  mines,  and 
the  smelting  and  refining  of  any  such  ore  or  ores  through  all  the  dlfi'er- 
ent  processes  and  branches  thereof,  in  such  a  manner  in  all  respects  as 
our  said  attorney  shall  think  advisable  and  expedient  for  our  benefit  and 
advantage;  and  also  for  him,  our  said  attorney,  from  time  to  time  to 
contract  to  sell,  and  absolutely  to  sell  and  dispose  of  the  produce  and 
proceeds  of  any  such  mines  or  ores,  or  any  part  thereof,  or  barter,  or 
exchange  and  deliver  the  same  for  or  in  lieu  of  any  goods,  wares,  or 
merchandize,  the  produce  of  Peru,  or  otherwise,  as  to  our  said  attor- 
ney shall  seem  meet,  or  convenient,  or  expedient,  and  also  in  the  dis- 
cretion of  our  said  attorney  to  transmit  to  England  to  us,  or  on  our 
account,  all  or  any  part  of  the  proceeds  or  produce  of  any  such  mines 
or  ores,  or  of  the  goods,  wares,  or  merchandize  received  or  taken  by 
way  of  barter  or  exchange  as  aforesaid,  or  else  to  sell  or  dispose  of  any 


5  Bingham,  442.  497 

such  goods,  wares,  or  merchandize  so  received  or  taken  in  exchange 
aforesaid,  and  also  to  ask,  demand,  sue  for,  recover,  and  receive  of 
and  from  all  and  every  person  and  persons  whomsoever,  liable,  inter- 
ested or  compellable  in  that  behalf,  all  debts,  sums  of  money,  bonds, 
bills,  notes,  securities  for  money,  goods,  chattels,  or  effects,  which  in 
the  prosecution  of  the  said  undertakings,  or  any  of  them,  or  in  relation 
to  the  purposes  and  objects  aforesaid,  or  arising  out  of  the  same,  shall 
become  due,  owing,  payable,  or  deliverable,  or  of  right  shall  belong 
to  us,  or  any  or  either  of  us,  and  upon  receipt  or  delivery  thereof  re- 
spectively, or  of  any  part  thereof,  to  make,  sign,  seal,  and  execute, 
and  deliver  good  and  sufficient  receipts,  releases,  acquittances,  and  other 
discharges  for  the  same;  and  also,  if  necessary,  to  compound  any  debts, 
sums  of  money,  claims,  and  demands  so  due  and  owing,  or  to  become 
due  and  owing  to  us,  or  any  or  either  of  us,  and  to  take  less  than  the 
whole  in  full  for  the  same,  and  to  extend  the  time  of  payment  thereof, 
or  the  delivery  of  any  goods  or  effects,  and  to  accept  security  for  the 
same  respectively,  or  any  part  thereof;  and  also  to  adjust,  settle,  and 
allow,  or  to  disallow  any  accounts  which  may  subsist  between  us  or 
any  other  person  or  persons,  or  between  our  said  attorney  or  any  other 
person  or  persons  in  respect  or  any  way  relating  to  such  mines  or  ores, 
or  the  working,  smelting,  or  refining  thereof,  or  the  proceeds  or  pro- 
duce thereof,  or  to  any  goods  or  eflects  bartered,  sold,  or  exchanged 
as  aforesaid,  or  to  any  of  the  purposes  or  objects  aforesaid,  or  to  any 
other  matter,  cause,  or  thing  relating  thereto  or  arising  out  of  the  same 
respectively,  wherein  we  may  be  in  any  manner  interested  or  concern- 
ed; and  for  all  or  any  of  the  purposes  or  objects  aforesaid  or  relating 
thereto,  for  us  and  in  our  and  each  and  either  of  our  names  or  name, 
and  as  our  and  each  of  our  act  and  deed,  or  in  the  name  of  our  said  at- 
torney, to  sign,  seal,  execute,  and  deliver  any  deed  of  composition  or 
release,  or  other  deeds,  bonds  of  arbitration,  or  other  bonds,  agree- 
ments, instruments,  assignments,  assurances,  and  other  acts  whatso- 
ever, as  there  may  be  occasion  in  the  judgment  or  opinion  of  our  said 
attorney;  and,  accordingly,  to  perform  and  carry  into  full  effect  any 
covenant,  engagement,  or  liability,  in  such  deeds  or  other  instruments 
or  assurances  to  be  contained  on  our  parts  or  behalves, or  on  the  part  of 
our  said  attorney;  and  also  in  manner  aforesaid,  or  otherwise,  to  com- 
mence, sue  fortii,  and  prosecute  any  action,  suits,  processes,  or  other 
proceeding's  whatsoever  according  to  the  laws  of  the  country,  whicli  it 
may  be  necessary  or  expedient  in  the  judgment  or  opinion  of  our  said 
attorney  to  commence,  sue  forth,  and  prosecute  in  and  about,  and  for 
the  purpc)se  of  carrying  into  effect,  all  or  any  of  the  ])ni[)oscs  or  ob- 
jects hereinbefore  mentioned,  an<l  the  powers  and  authorities  herein 
contained;  and  if  he  shall  think  it  proper  or  expedient,  to  discontinue 
or  become  nonsuit  in  any  such  action,  suits,  or  proceedings;  and  also 
to  defend  any  action,  suits,  and  proceedings  whicli  may  be  instituted 
against  us,  any,  or  cither  of  us,  or  against  our  said  attorney  on  our,, 
any  or  either  of  our  accounts  in  relation  to  the  premises,  and  for  or 
about  or  respecting  any  of  the  purposes  or  objects  aforesaid,  to  appear 
in  or  before  any  courts,  tril)unals,  judges,  miinslers,  or  oflicers  what- 
soever, when  and  as  there  may  he  occasion,  and  there  to  make  such 
protests,  appeals,  and  declarations,  and  to  take,  adopt,  and  [)urpue  all 
such  other  proceedings  as  our  interest  may  from  time  to  time  require, 
and  as  to  our  said  attorney  shall  seem  recpiisile  and  expedient,  and  gen- 
voL.  XV.  G3 


498  WiTHiNGTON  V.  Herring.  E.  T.  1829. 

erally  for  the  purposes  aforesaid,  or  any  of  tlicm,  or  otherwise  in  rela- 
tion to  the  ])remiscs,  to  transmit,  negotiate,  manage,  execute,  and  per- 
form all  such  acts,  deeds,  matters,  and  things  whatsoever,  as  to  our 
said  attorney  shall  in  his  judgment  and  opinion  seem  meet  or  expedient 
to  be  done  or  performed  in  and  about  all  and  singular  the  premises 
aforesaid;  and  that  as  fully,  extensively,  and  effectually  in  all  respects, 
and  to  all  intents  and  purposes  whatsoever,  as  we  ourselves  could  do, 
perform,  or  act  in  the  same  if  we  were  personally  present  and  acting 
therein;  and  we  do  hereby  give  and  grant  unto  our  said  attorney  full 
power  and  authority  from  time  to  time  to  nominate,  substitute,  and  ap- 
point one  or  more  attorney  or  attornies  under  him,  to  act  in  and  about 
all  or  any  of  the  purposes  or  objects,  and  such  substituted  attorney  or 
attornies  at  pleasure  to  dismiss  from  time  to  time,  and  notwithstanding 
the  substitution  of  any  other  attorney  or  attornies  as  aforesaid,  to  exer- 
cise and  perform  all  or  any  of  the  powers  and  authorities  hereinbefore 
expressed  and  contained,  and  given  to  him;  and  we  do  hereby  give 
and  grant  unto  our  said  attorney,  and  his  substitute  and  substitutes  to 
be  appointed  from  time  to  time,  our  full  and  whole  power  and  autho- 
rity over  the  premises;  and  we  do  hereby  promise  and  agree  to  ratify 
and  confirm,  and  allow  all  and  whatsoever  our  said  attorney  and  such 
substitute  or  substitutes  shall  lawfully  do  or  cause  to  be  done  in  and 
about  the  premises,  under  and  by  virtue  of  these  presents.  In  witness 
whereof  we  have  hereunto  set  our  hands  and  seals  at  London  the  8th 

day  of  January  1825.  ^n    .        „  tj 

^  •'  <' Charles  Herring. 

"William  Graham. 
<' William  D.  Powles." 

Crabtree,  after  he  had  raised  more  than  10,000/.  under  this  power, 
obtained  from  the  plaintiff  in  Peru,  among  other  sums,  1500/.,  which 
he  applied  to  the  defendant's  use,  and  drew  bills  on  the  defendants  for 
the  amount. 

These  bills  the  defendants  did  not  accept  or  pay,  whereupon  the  plain- 
tiff, considering  the  drawing  of  them  by  the  agent  to  be  equivalent  to 
an  acceptance  by  the  defendants,  brought  an  action  to  recover  the  amount, 
and  declared  on  the  bills,  adding  counts  for  money  paid,  money  had 
and  received,  and  on  an  account  stated. 

At  the  trial  before  Best  C.  J.,  Guildhall  sittings  after  Michaelmas 
term,  Crabtree  stated  that  he  did  not  shew  the  letter  of  credit  to  the 
plaintiff;  that  there  were  no  indorsements  on  it  of  sums  advanced  by 
others,  but  he  could  not  say  that  the  plaintiff  was  acquainted  with  that 
fact;  that  he  could  not  state  whether  he  had  shewn  the  plaintiff  the 
power  of  attorney  or  not;  but  that  it  lay  separate  from  the  other  insru- 
ments  in  order  to  be  shewn  to  any  who  might  require  to  see  it. 

The  jury  gave  a  verdict  for  the  plaintiff,  and  found  specially, 

1.  That  it  was  the  duty  of  the  plaintiff  to  call  for  the  power  of  attor- 
ney and  letter  of  credit. 

2.  That  there  was  no  evidence  whether  he  had  done  so  or  not;  and 

3.  That  there  was  no  evidence  of  his  having  been  informed  that  mo- 
ney had  been  advanced  by  others  under  the  letter  of  credit. 

Wilde  Serjt.  obtained  a  rule  nisi  to  set  aside  this  verdict,  on  the 
ground  that  the  power  given  to  Crabtree  did  not  authorize  him  to  raise 
a  sum  beyond  the  10,000/.  mentioned  in  the  letter  of  credit,  or  for  any 
purpose  but  obtaining  the  lease  of  mines. 


5  Bingham,  442.  499 

Taddy  Serjt.  {Russell  Serjt.  was  with  him),  who  shewed  cause,  con- 
tended, first,  that  by  the  agreement  for  a  fifth  part  of  the  profits  be- 
tween Crabtree  and  the  defendants,  Crabtree  became  their  partner,  and, 
so,  competent  to  engage  them  to  any  extent:  and,  secondly,  that  even 
if  this  were  not  so,  the  power  given  to  him  was,  notwithstanding  the  let- 
ter of  credit,  sufficiently  ample  to  enable  him  to  raise  money  for  any 
purpose  and  to  any  extent. 

On  the  first  head,  he  admitted,  that  a  clerk  might  be  paid  by  a  per 
centage  on  profits,  without  becoming  a  partner;  but  here,  Crabtree  was 
to  have  a  specific  salary  as  clerk  (1000/.  a  year),  and  to  have  one  fifth 
of  the  profits  besides,  which  clearly  made  him  a  partner.  tVaugh  v. 
Carver^  2  H.  B.  247;  Hesketh  v.  Blanchard,  4  East,  144.  But  on 
the  second,  he  contended  that  a  more  ample  power  could  not  be  given, 
and  that  Crabtree  was  not  confined  to  the  hiring  of  mines,  but  was  au- 
thorized to  purchase;  and  if  so,  to  raise  money  to  the  necessary  extent, 
as  amply  as  his  principals  themselves  could  have  done. 

Russell  was  stopped  by  the  Court. 

JVilde  and  Stephen  Serjts.,  in  support  of  the  rule,  rested  their  case 
on  the  following  positions: — 

1st.  Where  a  power  is  accompanied  by  other  instruments,  the  extent 
of  the  power  must  be  collected  from  all  the  instruments  taken  together, 
and  not  from  any  one  separately. 

2d.  General  expressions  in  a  power  are  limited  and  restrained  by  the 
nature  of  the  particular  object  of  the  power.  Altioood  v.  Munnings^ 
7  B.  &  C.  27S;  Hogg  v.  Snaith,  1  Taunt.  347;  Hay  v.  Goldsmidt, 
1  Taunt.  349. 

3d.  Taking  the  agreement,  the  instructions,  the  letter  of  credit,  and 
\  the  power,  in  this  case,  together,  it  is  plain  that  Crabtree  had  only  au- 
thority to  raise  money  for  taking  mines  under  a  lease  (not  for  purchas- 
ing them),  and  to  the  extent  of  no  more  than  10,000/.  The  words  in- 
strument  and  grant  must  be  construed  with  reference  to  the  expressions 
with  which  they  are  accompanied:  noscuntur  a  sociis;  and  the  object 
of  the  whole  is  shewn  by  the  words  demise  or  lease.  For  the  purpose 
of  obtaining  leases,  there  could  be  no  necessity  for  raising  a  larger  sum 
than  10,000/.  •• 

4th.  It  is  the  business  of  every  one  who  deals  with  an  ngont,  to 
satisfy  himself  of  the  nature  and  extent  of  the  agent's  authority  before 
he  deals. 

5th.  if  the  plaintiff  saw  those  authorities,  his  claim  is  dcfeatcil  by  the 
third  proposition.  If  he  might  have  seen  them,  and  did  not,  he;  must 
sufftjr  for  his  own  neglect. 

Shirrijf  v.  f Hikes,  I  East,  4S;  Savillc  v.  Roherfsoti,  4  T.  R.  720; 
and  Young  v.  Hunter,  4  'J'aunt.  5S'>,  were  cited  to  shevv  that  Crabtree 
did  not  become  a  partner  with  the  defendants  by  undertaking  the  con- 
duct of  the  adventure  tjndcr  a  stipulation  to  receive  a  portion  of  the 
profits.  That  was  only  intended  as  an  addition  to  his  salary  as  agent. 
It  would  occasion  great  alarm  in  the  cnniniercial  world,  if  an  agent  with 
a  limited  autinjrit}'  were  enabled  to  raise  money  to  any  extent,  under 
the  mere  verbiage  of  a  conv(;yancing  power. 

l5f;sT  C.  J.  It  is  not  necessary  to  decide  in  this  case  wiietlicr  Crab- 
tree was  a  partner  with  the  defendants  or  not,  as  it  seems  to  us  that  lie 
was  clearly  their  agent  in  Ibis  transantion.  Thenr  is  no  ground  foi'  llie 
alarm  which  it  is  sujiposcd  will  be  felt  by  the  commercial  world,  fur 


.5(X)  W'l  1  iiiN(.TON  V.  Herring.    E.  T.  1828. 

this  w.'is  not  a  commercial  transaction;  and  I  miglit,  perhaps,  have  for- 
hornc  to  leave  the  matter  to  tlic  jury  in  tlie  way  in  which  it  was  left, 
lint  the  jury  have  found  that  it  is  the  duty  of  a  party  advancing  money 
to  an  agent,  to  look  at  his  power  of  attorney  and  letter  of  credit;  nega- 
tiving, thereby,  the  necessity  of  calling  for  his  letter  of  instructions;  and 
properly,  too,  because  the  agent's  letter  of  instructions  may  contain 
communications  which  it  may  be  neither  safe  nor  convenient  to  divulge. 
If,  therefore,  the  power  of  attorney  and  letter  of  credit  did  not  consti- 
tute a  suflicient  authority  for  what  Crabtree  has  done,  the  plaintiff  is  not 
entitled  to  recover.  I  am  of  opinion,  connecting  these  two  documents 
with  the  fact  that  the  plaintiff  had  no  notice  of  other  advances  having 
been  made,  that  Crabtree  had  sufficient  authority  to  take  up  the  money 
in  question.  I  agree  that  an  authority  of  this  kind  is  to  be  taken  strictly, 
and  is  not,  by  mere  general  words,  to  be  extended  beyond  the  par- 
ticular object  in  view.  But  it  is  impossible  to  doubt  that  these  two 
instruments  do  confer  authority  on  Crabtree  to  raise  money  in  order 
to  carry  into  effect  the  object  of  his  employers.  It  would  be  lamenta- 
ble if  a  foreigner  who  had  advanced  money  on  the  faith  of  such  instru- 
ments, should  be  told  he  ought  to  have  sent  to  England  for  the  opinion 
of  an  English  conveyancer,  when,  upon  the  face  of  the  instrument,  a 
plain  understanding  could  entertain  no  doubt.  The  language  is  as  ex- 
tensive as  the  empires  with  which  the  defendants  propose  to  have  trans- 
actions:— 

"Each  and  every  of  us  do  make,  ordain,  nominate,  constitute,  and 
appoint  the  said  John  Crabtree  to  be  our  and  each  of  our  true  and  law- 
ful attorney  for  us  and  each  of  us,  and  in  our  or  each  of  our  names  or 
name,  or  in  the  name  of  our  said  attorney,  to  enter  into,  transact,  com- 
plete, and  execute  all  such  negotiations,  proposals,  contracts,  engage- 
ments, or  agreements  which  our  said  attorney  shall,  in  relation  to  the 
said  proposals,  undertakings,  or  any  of  them,  deem  it  expedient  or  pro- 
per to  enter  into,  transact,  complete,  and  execute  with  the  government 
or  governments  for  the  time  being  of  the  said  empire,  states,  territories, 
and  dominions  of  Peru,  and  their  dependencies  in  South  America,  or 
any  of  the  ministers,  officers,  branches,  or  departments  thereof  respec- 
tively, or  with  any  public  or  priVate  companies,  or  other  persons  entitled 
to,  interested  in,  or  having  the  care,  superintendance,  management,  go- 
vernment, agency,  control,  or  direction  of  or  over  any  mine  or  mines, 
vein  or  veins  of  ore  whatsoever,  situate  and  being,  or  which  may  here- 
after be  found  or  discovered,  or  be  denounced  within  any  part  or  parts 
of  the  aforesaid  empire,  states,  territories,  or  dominions,  and  their  re- 
spective dependencies,  for  the  purpose  of  obtaining  a  grant,  demise,  or 
lease  of  any  such  mines  or  veins,  or  of  any  lands  or  grounds  over  or  ad- 
joining the  same,  or  for  i\\(i  pnr chase  of  any  ore  or  ores,  or  of  the  right 
to  open,  dig,  or  work  any  mine  or  mines.'" 

It  has  been  urged,  that  the  meaning  of  the  word  grant  must  be  col- 
lected from  those  with  which  it  is  accompanied,  and  is  not  to  be  extend- 
ed beyond  a  lease.  But  how  is  a  foreigner  to  make  such  a  distinction? 
Looking  at  the  instrument,  hov/ever,  with  the  eye  of  an  English  con- 
veyancer, I  should  say  that,  taking  the  whole  together,  the  word  grant 
implies  a  conve3'ance  upon  absolute  purchase  as  well  as  upon  demise; 
and  if  Crabtree  were  authorized  to  purchase,  he  was  impliedly  author- 
ized to  raise  money  to  effect  his  purchase. 

But  then,  it  is  said,  he  was  restricted  by  the  letter  of  credit. 


5  Bingham,  442.  501 

In  Beawes's  Lex  Mcrcatoria  there  is  a  form  of  a  letter  of  credit;  and 
if  the  defendants  had  pursued  that,  no  difficulty  could  have  arisen.  Ac- 
cording to  that  writer,  a  letter  of  credit  is  addressed  to  A.,  B.,  or  C,  to 
advance  the  agent  so  much.  The  instrument  executed  by  the  defendants 
in  this  case  can  scarcely  be  called  a  letter  of  credit;  it  is  addressed  to 
the  agent  himself;  and  if  a  man  is  foolish  enough  to  sign  such  an  instru- 
ment, he  authorizes  any  one  who  does  not  know  that  money  has  already 
been  raised,  to  advance  10,000/.  to  the  holder.  The  jury  here  have 
found  that  there  is  no  evidence  of  the  plaintiflf's  having  been  made  ac- 
quainted with  the  fact  that  money  had  before  been  raised  on  the  letter 
of  credit,  and  it  is  for  the  persons  who  execute  such  instruments  to  shew 
that  fraud  has  been  practised  against  them,  and  not  to  call  on  the  other 
party  to  enter  upon  proof  of  circumstances  to  which  he  may  be  an  entire 
stranger.  Our  decision  will  produce  no  ill  effect  on  commercial  credit; 
it  will  tend  to  protect  the  inhabitants  of  other  countries,  and  will  com- 
pel merchants  to  send  out  none  but  honest  agents. 

Park  J.  Powers  of  attorney  must  undoubtedly  be  construed  strictly; 
and  I  agree  in  all  that  was  said  by  the  Court  in  Attwood  v.  MimningSi 
for  it  confirms  the  judgment  we  are  now  pronouncing.  There,  an  agent 
having  accepted  a  bill,  Holroydi.  said,  "The  powers  in  question  did 
not  authorize  this  acceptance:  the  word  procuration  gave  due  notice  to 
the  plaintiffs,  and  the)'-  were  bound  to  ascertain,  before  they  took  the 
bill,  that  the  acceptance  was  agreeable  to  the  authority  given." 

The  agent  there  had  authority  to  indorse,  and  to  accept  bills  drawn 
by  agents  or  correspondents  on  the  defendant;  and  the  Court  held  a 
power  to  indorse  exclusive  of  a  power  to  accept,  and  a  power  to  accept 
bills  drawn  by  agents  exclusive  of  a  power  to  accept  bills  drawn  by  a 
partner.  But  Holroyd  J.  proceeds, — "  As  to  the  general  powers; — 
these  instruments  do  not  give  general  powers,  speaking  at  large,  but 
only  where  they  are  necessary  to  carry  the  purposes  of  the  special 
powers  into  effect."  Taking  that  doctrine  as  correct,  would  any  plain 
man,  reading  this  power  of  attorney,  suppose  it  did  not  confer  on  the 
attorney  ample  authority  to  do  every  act  necessary  to  the  acquiring 
property  for  his  principals?  If  drawing  bills  was  necessary,  common 
sense  says  he  had  power  to  draw  them  for  the  purposes  which  he  was 
intrusted  to  effect.  He  is  to  ''  enter  into,  transact,  complete,  and  exe- 
cute all  such  negotiations,  proposals,  contracts,  engagements,  or  agree- 
ments which  he  may  deem  it  expedient  to  enter  into  for  the  pur])ose  of 
obtaining  a  grant,  demise,  or  lease  of  any  mine,  or  for  the  purchdse  of 
any  ore,  or  of  the  right  to  dig  or  work  any  rnine.^''  IIow  is  he  to 
complete  any  such  engagements  without  paying?  And  how  can  it  be 
said  he  is  not  authorized  to  purchase  as  well  as  to  take  on  lease  the  right 
to  work  any  mine?  And  by  the  general  words  at  the  end,  he  is  to  do 
all  this  *'  as  fully,  extensively,  and  effectually,  in  all  respects  and  to  all 
intentsand  purposcswhatsoever,  as  we  ourselves  could  do,  perform,  or  act 
in  the  same,  if  we  were  personally  present  and  acting  therein."  It  would 
be  most  mischievous  if  a  man  were  to  be  sent  forth  with  such  a  power, 
and  his  principal,  when  it  had  been  acted  on,  were  to  be  j)crniitted  to 
say  that  such  expressions  were  mere  verbiage. 

BuRROirrin  J.  The  power  given  by  the  defendants  to  (Tahlrce  was 
clearly  sufficient  to  authorize  him  to  raise  money  for  the  dcrnndants'  use. 
Without  such  a  power  the  eulcrprizc  might  have  failed.      It  is  unneccs- 


502  Britten  v.  Hughes.  E.  T.  1829. 

sary,  therefore,  to  decide  on  the  question  of  partnership,  and  the  rule 
must  be  discharged. 

Gaselee  J.  Supposing  this  not  to  be  a  partnership,  I  have  dif- 
ficulties on  the  other  part  of  the  case;  but  I  agree  with  the  rest  of  the 
Court  in  the  propriety  of  not  disturbing  the  verdict.  Crabtree  said,  the 
power  lay  separate  for  the  purpose  of  inspection.  I  presume  that  per- 
sons in  the  situation  of  the  plaintiff  would  look  at  the  power  before  they 
advanced  money,  and  it  would  be  prejudicial  to  mercantile  interests  to 
restrain  a  power  where  the  object  in  view  requires  an  extensive  au- 
thority. As  to  the  enquiries  which  it  is  alleged  that  the  plaintiff  ought 
to  have  made  touching  any  sums  advanced  upon  the  letter,  of  credit,  it 
would  have  been  useless  to  make  them  of  Crabtree,  who  of  course  would 
not  disclose  any  thing  to  defeat  his  own  purpose,  and  impossible  to  make 
them  with  success  elsewhere,  as,  for  aught  that  could  be  learned  in  the 
absence  of  indorsements,  Crabtree  might  have  raised  the  money  before 
he  reached  America. 

Rule  discharged. 


BRITTEN  and  Others  v.  HUGHES.— p.  460. 

Plaintiff,  holding  two  bills  drawn  by  the  defendant,  one  for  400/.,  the  other  for 
156/.  19s.  lOd.,  executed  a  composition-deed,  containing  a  general  release  of 
the  defendant,  and  a  schedule  of  the  sums  due  to  various  creditors  who  executed 
the  deed.  After  the  plaintiff's  name  was  put  the  sum  of  156/.  19«.  lOrf.  only, 
at  the  request  of  the  defendant,  who  expected  the  plaintiff  would  recover  the 
bill  for  400/.  by  suing  the  acceptor.  The  other  creditors  were  not  made  ac- 
quainted with  the  fact,  that  the  plaintiff  had  a  debt  of  400/.  as  well  as  166/. 
19*.  lOd.: 

Held,  he  could  not  afterwards  sue  defendant  on  the  bill  for  400/. 
Caaelec  J.  disscntiente. 

Assumpsit  on  a  bill  of  exchange  for  400/.,  drawn  and  indorsed  by  the 
defendant  to  Sard  and  Smither,  who  having  discounted  it  for  him,  in- 
dorsed it  to  the  plaintiffs.      The  bill  was  due  May  4,  1826. 

At  the  trial  before  Best  C.  J.,  London  sittings  after  Michaelmas  term, 
it  appeared,  that  on  the  10th  May  1826,  the  plaintiffs,  who  were  also 
the  holders  of  another  bill,  drawn  by  the  defendant  for  156/.  19*.  \0d. 
executed,  in  conjunction  with  other  creditors  of  the  defendant,  a  release 
of  "all  and  all  manner  of  action  and  actions,  suit  and  suits,  cause  and 
causes  of  action  and  suit,  accounts,  reckonings,  bills,  notes,  sum  and 
sums  of  money,  and  security  for  money,  controversies,  damages,  claims, 
and  demands  whalsover,  which  we  the  said  several  creditors  of  the  said 
Henry  Iluglies,  or  any  or  either  of  us  ever  had  or  now  have,  or  which 
we  or  any  or  either  of  us,  or  any  or  either  of  our  respective  heirs,  ex- 
ecutors, administrators,  or  assigns,  can,  shall,  or  may  have,  sue  for,  claim, 
challenge,  or  demand  of,  from,  or  against  the  said  Henry  Hughes,  for 
or  on  account  of  any  debt,  claim,  or  demand  of  us,  or  any  or  cither  of 
us.  in  respect  of  any  security,  account,  or  reckoning  now  standing  and 
being  between  us  or  any  or  either  of  us,  or  any  part  or  parts  thereof  with 
or  against  the  said  Henry  Hughes,  as,  for,  or  on  account  of  any  other 
matter,  cause,  or  thing  whatsoever,  from  the  beginning  of  the  world  to 
the  day  of  the  date  of  these  presents." 


5  Bingham,  460. 


503 


' 

Names  of  Creditors. 

Amount  of 
Debts. 

L.S. 

Amount  of 
Composition. 

Britten,  Wilson,  } 
and  JNIeek,        3 

£     s.    d. 
156   19   10 

£     s.   d. 
78     9  11 

The  defendant  relied  on  this  deed  as  an  answer  to  the  action,  and 
Wilde  Serjt.  cited  Holmer  v.  Viiicr,  1  Esp,  131,  to  shew  that  a  party 
who  signs  a  composition-deed  cannot  by  splitting  his  demand,  compound 
for  a  part  only  of  his  claim,  and  by  reserving  himself  as  to  the  residue, 
obtain  a  greater  proportion  of  his  debt  than  other  creditors. 

The  plaintiffs  relied  on  Payler  v.  Hoiyiersham,  4  M.  &  S.  422,  in 
which  it  was  ruled  on  demurrer,  that  a  party  may  plead  that  a  com- 
position has  been  executed  for  a  part  of  his  debt  only;  and  they  called  a 
witness  who  proved  an  admission  on  the  part  of  the  defendant,  that  the 
400/.  bill  had  not  been  included  in  the  release,  because  the  defendant 
expected  that  the  acceptor  would  pay  the  bill,  and  the  plaintiffs,  looking 
to  him,  abstained  from  taking  composition-notes  from  the  defendant  for 
the  amount,  which  they  had  taken  in  respect  for  the  bill  for  156/.  \9s.\0d. 

The  learned  Chief  Justice  directed  a  nonsuit  on  the  authority  of  Hol- 
mer V.  Viner,  and  on  the  ground  that  it  was  a  violation  of  the  principle 
of  a  composition-deed,  and  legally  a  fraud  on  the  other  creditors,  if  they 
were  induced  to  believe  that  a  party  was  engaging  to  receive  a  composi- 
tion upon  the  whole  of  his  claim,  when,  in  fact,  he  was  receiving  it  only 
on  a  part. 

Taddy  Serjt.  having  obtained  a  rule  nisi  to  set  aside  this  nonsuit, 

Wilde  Serjt.,  who  shewed  cause,  relied  on  Holmer  v.  Viner  as  in 
point,  and  as  concurring  in  principle  \s\\.\\  Jackson  v.  Lomas^  4  T.  R, 
166;  Leicester  v.  Rose,  4  East,  372;  Cecil  v.  Plaistow,  1  Anstr.  202 j 
Harrhy  v.  Wall,  1  B.  &  A.  103. 

Taddy  and  Jones  Scrjts.  supported  the  rule,  and  cited  2  Stark.  N.  P. 
C.  195;  a  decision  by  Best  C.  J.  at  Guildliall,  May  1st,  182S,  in  I'en- 
ncll  and  others  v.  Day;   Harley  v.  Greenwood,  5  B.  &  A.  95. 

Best  C.  J.  I  continue  of  the  same  opinion  as  at  the  time  of  that  trial,  and 
I  am  confirmed  in  it  by  adverting  to  the  terms  of  the  composition-deed.  I 
am  not  embarrassed  by  my  own  decision  in  Fenncll  v.  Day,  because  if  I 
were  wrong  then,  that  would  be  no  reason,  as  Lord  Kenyan  said  upon  a 
similar  occasion,  for  my.continuing  to  be  wrong  now;  however,  the  ques- 
tion now  before  the  Court  was  not  raised  in  that  case.  I  only  decided 
there, on  the  authority  o[ Payler  v.  Horncrslia?n,\hal  a  debtor  may,  where 
the  other  creditors  are  not  kept  in  ignorance  of  the  fact,  make  a  compo- 
sition for  a  })ortion  of  his  debts,  and  that  general  terms  in  a  deed  may 
be  restrained  by  particular  terms  in  the  same  instrument.  But  I  put 
this  case  on  the  ground  of  fraud:  I  do  not  mean  moral  fraud,  but  fraud 
in  law;  and  a  practice  of  this  sort  has  a  great  tendency  to  encourage 
moral  fraud.  The  nonsuit,  therefore,  was  right  on  the  authority  of  de- 
cided cases;  for  Holmer  v.  l^iner  is  in  point,  and  is  not  a  mere  nisi 
prius  decision,  because  an  application  was  afterwards  made  in  banc  to  set 
aside  the  nonsuit,  and  a  rule  was  refused.  In  that  rase  the  plaintiff, 
who  had  two  demands,  having  signed  the  composition-fleerl  as  to  one  of 
them  only,  Lord  Kenyon  said,  that  he  could  not  so  split  his  demand;  and 


504  Britten  v.  Hughes.  E.  T.  1829. 

no  decision  has  been  cited  at  variance  with  that.  Leicesle?'  v.  Rose  has 
decided,  tliat  taking  a  diflerent  security  is  a  fraud  on  the  other  creditors, 
because  tlic)'  no  longer  stand  on  the  same  footing;  and  Cecil  v.  Plaistow 
was  determined  on  the  principle  which  we  now  adopt,  that  it  is  a  fraud 
on  the  other  creditors  to  sign  the  composition-deed  for  a  portion  only  of 
the  party's  demand,  unless  the  other  creditors  are  aware  of  the  fact. 

But  without  the  authority  of  cases,  the  principle  is  clear,  that  upon  a 
composition-deed,  all  the  parties  are  supposed  to  stand  in  the  same  situ- 
ation, and  if  there  is  any  one  of  them  who  refuses  to  do  so,  he  must 
announce  it  at  the  time.  The  plaintiff  here  says  he  will  take  \Qs.  in 
the  pound;  the  others  probably  esteem  it  useless  to  stand  out  after  that; 
and  if  they  suppose  the  plaintiff  signs  for  the  whole  of  his  demand  when 
such  is  not  the  fact,  they  are  not  in  a  condition  to  form  a  correct  judg- 
ment on  the  subject.  Independently,  therefore,  of  the  terms  of  this 
deed,  if  we  decided  in  favour  of  the  plaintiff's  claim,  we  should  esta- 
blish a  rule  that  would  lead  to  great  fraud  in  the  execution  of  composi- 
tion-deeds. There  is  not  the  analogy  which  has  been  supposed  between 
bankruptcy  and  compounding  with  creditors.  In  bankruptcy  there  is 
no  concert  or  understanding  between  the  creditors;  the  petitioning  cre- 
ditor acts  on  his  own  responsibility,  and  the  other  creditors  are  not  in- 
fluenced by  any  reliance  on  his  judgment.  The  only  question  here,  there- 
fore, is,  Whether,  upon  the  terms  of  this  deed,  the  other  creditors  were 
led  to  suppose  that  the  plaintiff  had  compounded  for  all  his  demands  ? 
Now,  if  every  other  creditor  had  the  same  mental  reservation  as  the 
plaintiff,  of  what  use  would  such  a  deed  of  composition  be  to  the  debtor  ? 
The  deed  specifies,  "all  and  all  manner  of  claims  and  demands  which 
we,  or  any  or  either  of  us  may  have,  sue  for,  claim,  challenge,  or  demand 
of,  from,  or  against  the  said  Henry  Hughes,  for  or  on  account  of  any 
debt,  claim,  or  demand  of  us,  or  any  or  either  of  us,  in  respect  of  any 
security,  account,  or  reckoning  now  standing  or  being  between  us,  or 
any  or  either  of  us,  with  or  against  the  said  Henry  Hughes." — Does 
not  that  mean,  all  tlie  debts  of  all  the  creditors  who  signed  the  deed  ? 
It  is  impossible  to  say  that  it  does  not;  and  the  use  of  the  schedule  is, 
not  to  enable,  but  to  prevent  the  plaintiff  from  bringing  forward  at  a  fu- 
ture time  other  claims  besides  those  specified  in  the  deed.  If  such  a 
reservation  could  be  made  with  the  consent  of  the  debtor,  it  would  be 
a  fraud  on  the  other  creditors,  as  calculated  to  mislead  their  judgment; 
if,  without  the  consent  of  the  debtor,  it  would  be  a  fraud  against  him 
also.  Language  more  operative  than  that  employed  in  this  deed,  to  re- 
lease every  kind  of  debt,  could  not  have  been  employed.  But  the  main 
ground  on  which  we  decide,  is,  that  if  reservations  like  this  be  allowed, 
no  man  again  will  agree  to  a  deed  of  composition.  Such  transactions 
are  necessarily  uberrima^  fidei,  and  no  engagement  can  stand  which  has 
been  withheld  from  the  knowledge  of  the  whole  body  of  the  creditors, 
and  which  it  would  have  been  material  for  them  to  know. 

Park  J.  I  am  of  the  same  opinion,  and  have  never  entertained  any 
doubt  on  the  point:  indeed,  if  the  facts  had  been  understood,  I  doubt 
whether  the  rule  nisi  would  have  been  granted.  Courts  of  law  are 
never  better  employed  than  in  supporting  the  rules  of  morality;  and,  in 
Jackson  v.  IJnckuire,  3  T.  R.  551,  Lord  Kenyon  was  clearly  of  opin- 
ion that  the  plaintiff  was  not  entitled  to  recover,  upon  the  ground  that 
the  private  agreement  between  the  plaintiff  and  defendant  was  a  fraud 
upon  a  third  person,  who  had  paid  a  less  sum  in  advancement  of  the  de- 


5  Bingham, ,460.  505 

fendant,  in  confidence  that  the  sum  so  paid  by  him  was  the  whole  con- 
sideration due  to  the  plaintifl.  From  tliat  tiine  to  the  present  the  de- 
cisions have  all  coincided,  and  if  we  were  to  put  on  this  deed  the  con- 
struction contended  for,  we  should  be  adopting  all  the  frippery  instead 
of  the  substance  of  special  pleading;  for  the  object  of  this  deed  is  ex- 
press, that  the  defendant  should  go  clear  of  his  debts;  and  though,  per- 
haps, there  might  have  been  an  understanding  with  the  plaintiff,  to  sup- 
port it  would  lead  to  infinite  fraud,  and  open  the  floodgates  of  misery 
on  poor  debtors. 

BuRROuGH  J.  I  think  the  nonsuit  was  perfectly  right.  We  should 
be  very  strict  in  the  construction  of  deeds  of  this  kind,  which  are  exe- 
cuted on  the  supposition  of  the  creditors  all  standing  on  the  same  foot- 
ing. The  cretlitors  here  all  meant  to  release  the  defendant,  and  the  very 
exception  specified  in  the  deed  shews  that  no  other  exception  ought  to 
be  implied.  There  is  nothing  in  the  deed  to  narrow  the  construction 
of  the  general  terms;  the  defendant  was  to  be  made  a  free  man;  and  the 
deed  given  in  evidence  is  conclusive  against  the  plaintiffs. 

Gaselee  J.  Although  1  do  not  concur  in  tlie  decision  pronounced 
by  the  Court,  I  am  not  sorry  for  the  conclusion  at  which  they  have  ar- 
rived, because  the  rule  they  have  laid  down  is  sound  and  beneficial, 
and  likely  to  prevent  fraud  in  compositions;  and  if  this  question  had 
now  been  raised  for  the  first  time,  I  should  have  concurred  with  them, 
but  I  doubt  whether  the  conclusion  they  have  come  to  is  warranted  by 
previous  authorities.  Holmer  v.  Vi)ier  is  undoubtedly  like  the  pre- 
sent case;  but  there  the  defendant  had  given  up  all  his  property,  which 
the  present  defendant  has  not  done,  nor  even  given  security  for  the 
whole  amount  of  the  sum  to  be  paid  under  the  composition.  In  Lei- 
cester v.  Rose  there  was  a  private  stipulation  that  the  plaintiff  should 
have  collateral  security  for  the  whole  of  his  demand,  which  was  a  fraud 
on  the  debtor  himself.  All  the  other  cases  are  distinguishable  from  the 
present,  except  Payler  v.  Homersham,  which  appears  to  me  directly 
in  point,  and  to  be  overruled  by  the  present  decision.  There  a' release 
contained  in  a  deed,  (which  recited  that  defendant  stood  indebted  to  his 
creditors  in  the  several  sums  set  to  their  respective  names,  and  that 
they  had  agreed  to  take  of  the  defendant  \5s.  in  the  pound  upon  the 
whole  of  their  respective  debts,)  whereby  tlie  creditors,  in  considera- 
tion of  the  said  15,5.  in  the  pound  paid  to  them  before  executing  the  release, 
"each  and  every  of  them,  did  release  defendant  from  all  manner  of  ac- 
tions, debts,  claims,  and  demands,  in  law  and  equity,  which  they  or  any 
or  either  had  against  him,  or  thereafter  could,  should,  or  might  have, 
by  reason  of  any  thing  from  the  beginning  of  tlie  world  to  the  date  of 
release,"  was  held  to  release  nothing  but  the  respective  debts  set  oppo- 
site the  creditors'  names,  and  all  actions  and  demands  touching  llicni. 
And  the  broad  principle  laid  down  was,  that  the  general  words  in  a 
deed  of  release  have  reference  to  tiic  particular  recital,  and  shall  be  go- 
verned by  it.  This  {\cci.\,  by  the  list  attached,  clearly  sjiecifies  the  debts 
to  which  it  was  intended  to  be  applied;  and  the  words  of  general  re- 
lease in  Payler  v.  Ilomcrslidin  are  not  more  extensive  than  those  em- 
ployed here. 

IJule  discharged. 

vor..  XV.  G1 


506        Doe  d.  Soutiiouse  v.  Jenkins.  E.  T.  1829. 

DOE  dcni.  EDWARD  SOUTIIOUSE,  Clerk,  v.  JENKINS  and 

Another. — p.  469. 

1.  ^^'^here  by  a  very  obscure  and  illiterate  will,  property  was  left  to  devisor's  four 
grandsons,  «'  and  to  the  heirs  males  of  the  said  grandsons,  and  then  to  the  grand- 
sons' heirs  males  that  part  that  belonged  to  their  father,  and  then  to  the  last  liver 
to  the  heirs  males  of  the  said  grandsons,  and  for  want  of  issues  males  of  the 
grandsons,"  over;  the  Court  implied  cross  remainders. 

2.  The  heir  in  tail  received  for  ten  years  rent  under  a  lease  for  ninety-nine  years 
granted  by  his  ancestor:  Held,  a  confirmation  of  the  lease. 

This  was  an  action  of  ejectment  brought  to  recover  two  undivided 
third  parts  of  certain  messuages,  vaults,  yards,  and  premises  in  Southouse 
Court,  otherwise  Edward's  Court,  in  the  parish  of  St.  Martin  in  the 
Fields,  in  the  county  of  Middlesex. 

The  cause  came  on  to  be  tried  before  Burrotigh  J.,  at  the  sittings  at 
Westminster  after  Trinity  term  182S,  when  a  verdict  was  found  for  the 
lessor  of  the  plaintiff,  subject  to  the  opinion  of  the  Court  upon  the  fol- 
lowing case: — 

Henry  Southouse  being  seised  in  fee  (inter  alia)  of  the  freehold  part  of 
a  messuage  in  the  strand,  in  the  county  of  Middlesex,  then  called  Ihe 
Sun  Tavern,  (whereof  the  messuages  and  premises  in  question,  or  the 
land  on  which  the  same  were  situate,  were  at  that  time  parcel,)  by  his 
last  will  and  testament,  bearing  date  the  3d  day  of  November  1743,  and 
properly  executed  and  attested  so  as  to  pass  real  estates,  after  devising 
to  his  son  Thomas  Southouse  certain  lands  and  tenements  not  in  question 
in  this  cause,  proceeded  to  devise  as  follows:  "I  give  and  devise  to  my 
son  Thomas  Southouse,  lately  in  the  possession  of  Watkin,  or  Mrs.  May, 
now  INlrs.  Hayes,  the  Sun  Tavern,  in  the  Strand,  in  the  parish  of  St. 
Martin  in  the  Fields,  in  the  county  of  Middlesex,  for  and  during  his 
natural  life.  I  do  give  and  devise  to  my  said  son  Thomas  Southouse  all 
those  two  farms,  &c.  at  Ravensdon  in  Bedfordshire,  for  and  during  his 
natural  Jife.  But  whosoever  shall  be  in  possession  of  the  said  lands  at 
Ravensdon,  and  all  the  aforesaid  premises  so  given  by  me  to  my  said 
son  Thomas  Southouse,  I  charge  on  it  a  rent  or  an  annuity  of  40/.  per 
annum  to  be  paid  to  my  daughter  Ann  Pellatt,  for  and  during  her  natural 
life,  and  an  annuity  of  40/.  per  annum  to  be  paid  to  my  daughter  Eliza- 
beth Parker,  for  and  during  her  natural  life."  And  in  another  part  of 
the  said  will  as  follows:  <'And  from  and  after  the  decease  of  the  said 
Thomas  Southouse,  I  give  and  devise  the  said  farms  at  Ravensdon,  &c., 
and  my  houses  in  the  occupation  of  the  late  Watkins  and  Mrs.  May, 
now  I\Irs.  Hayes,  to  the  fust  son  of  the  body  of  the  said  Tliomas  South- 
ouse, lawfully  begotten,  and  his  heirs  male  of  the  body  of  such  first  son 
lawfully  issumg,  and  for  default  of  such  issue,  to  the  second,  third,  and 
fourth,  and  all  and  every  other  the  son  and  sons  of  the  body  of  my  said 
son  Thomas  Southouse,  severally  and  successively,  and  in  remainder, 
one  after  another,  as  they  and  every  of  tliem  shall  be  in  senior! ly  of  age 
and  priority  of  birth,  and  the  several  heirs  male  of  the  body  and  bodies 
of  all  and  every  sucli  son  and  sons  lawfully  issuing,  the  elder  of  such 
sons  and  the  heirs  male  of  his  body  issuing  being  always  preferred,  and 
to  take  before  the  younger  of  such  sons  and  the  heirs  male  of  his  and 
their  body  and  bodies  issuing.  I  give  and  devise  part  of  the  said  mes- 
suage and  premises  unto  my  son  Samuel  Southouse  for  his  life,  and  to  his 
heirs  males  of  his  body,  after  the  decease  of  my  son  Thomas  Southouse  and 


5  Bingham,  469.  507 

his  heirs  males,  viz.  my  farms  at  Upminster,  &c.,  and  the  Sun  Tavern, 
late  Mrs.  Hayes,  in  the  Strand,  in  St.  Martin's  in  the  Fields;  and  for 
want  of  issue  males  of  my  son  Thomas  and  my  son  Samuel  Southouse, 
after  their  decease  I  give  the  aforesaid  farm  at  Upminster,  &c.,  and  the 
Sun  Tavern,  I  give  and  devise  them  to  my  son  Edward's  four  sons,  to 
Henry  Southouse,  to  Edward  Southouse,  to  Thomas  Southouse,  and  to 
William  Southouse,  my  four  grandsons.  And  I  do  further  give  to  my 
four  grandsons  as  above,  after  the  decease  of  my  son  Thomas  Southouse 
and  his  heirs  males,  all  my  farms,  &c.  at  Ravensdon,  in  Bedfordshire. 
And  1  do  hereby  order  to  be  paid  out  of  the  premises  as  is  before  given 
to  my  son  Samuel  Southouse  and  his  heirs  males,  and  also  my  four  above 
grandsons,  out  of  their  premises,  in  proportion  to  the  value  of  the  se- 
veral rents,  to  pay  certain  annuities  mentioned  in  the  will;  and  then, af- 
ter the  decease  of  my  son  Thomas  Southouse,  and  his  heirs  males,  and 
after  the  decease  of  my  son  Samuel  Southouse,  and  his  heirs  males,  then 
I  give  all  the  above  said  farms,  and  premises,  and  messuages,  to  my 
above  said  four  grandsons,  they  to  have  share  and  share  all  alike  of  all 
the  aforesaid  premises.  And  then  I  give  to  the  heirs  males  of  all  my 
said  grandsons,  and  then  to  go  to  my  grandsons'  heirs  males,  that  part 
that  belonged  to  their  father,  and  then  to  them,  and  then  to  the  last  liver 
to  their  heirs  males  of  my  said  grandsons;  and  for  want  of  issues  males 
of  my  grandsons,  I  give  my  grandson  Ilcnry  Southouse,  son  of  my  son 
Henry  Southouse,  and  to  his  heirs  males  of  his  body  lawfully  to  be  be- 
gotten. And  for  default  of  such  issue  male,  to  my  nephew  William 
Southouse,  and  his  heirs  males,  and  to  my  grandson  Edward' Parker, 
his  heirs  males,  and  for  want  of  such  issue  male,  I  will  that  the  same  re- 
main to  my  own  right  heirs  for  ever." 

The  said  testator  from  the  time  of  making  his  said  will  until  and  at 
the  time  of  his  decease,  remained  seised  as  aforesaid  of  the  said  freehold 
part  of  the  Sun  Tavern,  and  died  in  or  about  March  1744,  being  surviv- 
ed by  his  said  sons  Thomas  and  Samuel,  and  by  his  four  grandsons 
Henry,  Edward,  Thomas,  and  William. 

In  or  about  the  year  1779,  Thomas,  one  of  the  said  four  grandsons  of 
the  testator,  died,  leaving  no  issue  male. 

In  or  about  the  same  year,  William,  another  of  the  said  grandsons 
died,  leaving  issue  male  of  his  body  lawfully  begotten,  only  two  sons, 
Edward  and  John  Carr. 

In  1789,  the  said  Thomas  and  Samuel,  sons  of  the  testator,  were  both 
deceased  without  issue  male. 

On  the  2fnh  of  September  1790,  by  indenture  of  that  date  between 
Edward  Southouse,  one  of  the  said  grandsons  of  the  testator,  and  Charles 
Southouse  eklest  son  lawfully  liegottcn  of  the  last  mentioned  Edward 
(and  described  as  Iiis  eldest  son  and  heir  in  the  said  indenture)  of  the 
one  p^rt,  and  the  said  Edv/ard  Southouse,  son  of  the  said  William,  de- 
ceased, of  the  other  part,  the  said  parties  of  tiie  first  part  did  (h.-niisc  imto 
the  said  party  of  the  second  part  one  undivided  third  |);irt  or  share  of  the 
freehold  part  of  the  Sun  Tav(;rn,  l)cing  the  same  messuage  or  tenement  in 
the  said  will  described  as  the  Sun  Tavern  (then  in  theoccupation  of  the  said 
lessee  or  his  under-tenantH),^to  hold  tlic  same  unto  the  said  lessee  from  the 
day  of  the  date  of  the  indenture,  for  the  term  of  ninety-nine  years  thence 
next  ensuing;  yielding  and  paying  unto  the  said  lessor  Kilward  and  his 
assigns  during  his  natural  life,  .-Mid  after  his  decnnse,  to  the  said  lessor 
Charles,  his  heirs  or  assigns,  the  yenrly  rent  of  9/. 


.')08  Doii  il.  SouTHousE  V,  Jenkins.  E.  T.  1829. 

On  the  sanitt  29ih  September  1790,  by  indenture  of  the  same  date, 
between  Henry  Sonthonsc,  another  of  the  said  grandsons  of  the  testator, 
and  Kdinund  Eilward  Sonthouse,  eldest  son  lawfully  begotten  of  the  s  licl 
last-mentioned  Henry,  (and  described  as  his  eldest  son  and  heir  in  ihe 
said  last-mentioned  indenture,)  of  the  one  part,  and  the  said  Edwa  d, 
lessee  in  the  first-mentioned  indenture,  of  the  other  part,  the  said  paries 
of  the  first  part,  did  demise  unto  the  said  party  of  the  second  part,  one 
undivided  third  part  or  share  of  tlic  said  freehold  part  of  the  Sun  Tavern, 
then  in  the  occu])ation  of  the  said  lessee  or  his  undertenants,  to  hold  the 
same  unto  the  said  lessee,  from  the  day  of  the  date  of  the  said  last-men- 
tioned indenture,  for  the  term  of  ninety-nine  years,  thence  next,  yield- 
ing and  paying  unto  the  said  lessor  Ilcnry,  and  his  assigns,  during  his 
natural  life,  and  after  his  decease  to  the  said  lessor  Edmund  Edward,  his 
heirs  or  assigns,  the  yearly  rent  of  6/.  13,9.  4^. 

Counterparts  of  the  said  leases  were  also  duly  executed  and  delivered 
to  the  res[)eclive  lessors,  and  produced  in  evidence  at  the  trial  on  the 
part  of  the  lessor  of  the  plaintiff. 

In  1793,  the  said  Henry  Southouse,  grandson  of  the  testator  and  lessor 
in  the  said  indenture  secondly  mentioned,  died,  and  was  survived  by  the 
said  Edmund  Edward,  his  co-lessor  and  only  issue  male. 

In  1794,  the  said  Charles  Southouse,  lessor  in  the  first-mentioned  in- 
denture, died  without  issue. 

In  1799,  the  said  Edvvard  Southouse,  lessee  in  the  said  indentures, 
and  his  said  brother  John  Carr,  were  both  deceased  without  issue. 

Jn  September  ISIO,  the  said  Edvvard  Southouse,  grandson  of  the  testa- 
tor and  lessor  in  the  said  first-mentioned  indenture,  died,  and  was  surviv- 
ed by  Edward,  the  lessor  of  the  plaintiff,  his  son  and  heir  at  law. 

In  February  1812,  the  said  Edmund  Edward,  lessor  in  the  said  in- 
denture secondly  mentioned,  died  without  issue. 

The  defendant  Jenkins,  claimed  possession  of  the  said  demised  pre- 
mises as  assignee  of  the  estate  and  interest  of  the  said  Edward  Southouse, 
lessee  under  the  said  leases  of  1790,  and  the  defendant  Woodhouse 
claimed  possession  of  the  same  as  assignee  of  a  lease  granted  by  the  said 
last-mentioned  Edward  in  JNIarch  1795,  purporting  to  be  a  demise  of 
the  freehold  part  of  the  Sun  Tavern  for  sixty  years,  from  Christmas 
1794. 

On  the  31st  May  1817,  the  lessor  of  the  plaintiff,  wrote  and  sent  a 
letter  demanding  rent,  to  Thomas  Roc,  then  acting  as  attorney  for  the 
defendant,  and  received  for  answer  a  letter  from  Roc,  in  which  he  stated 
fully  the  nature  of  the  title  of  the  lessor  of  the  plaintiff,  and  suggested  a 
particular  form  of  receipt. 

The  lessor  of  the  plaintiff,  from  the  date  of  Mr.  Roe's  letter  till  the 
giving  of  the  notices  thereinafter  mentioned,  received  from  time  to  time 
iVom  the  defendant  Jenkins  the  several  rents  reserved  by  the  said  several 
indentures  of  1790;  and  after  receiving  the  said  letter  from  the  said 
Thomas  Roe,  gave  receipts  for  the  said  rents  according  to  the  form  en- 
closed in  that  letter,  the  first  of  these  receipts  being  for  the  whole  rent 
that  had  become  due  since  the  title  of  the  lessor  of  the  plaintiff  accrued. 

On  the  23(1  March  1S27,  the  lessor  of  the  plaintiff  gave  the  defendant 
Jeiikins  notices  in  due  form,  to  quit  the  several  premises  demised  by  the 
said  two  several  indentures  of  1790  respectively. 

And  the  defendant  Jenkins  having  refused  to  comply  with  such  no- 
tices, the  lessor  of  the  ])laintiff,  after  the  expiration  of  the  periods  in  such 


5  Bingham,  469.  509 

notices  limited,  served  the  declaration  in  this  action  in  April  1828, 
containing  a  demise  hy  the  lessor  of  the  plaintiff  on  the  2d  of  April 
1828,  with  notices  for  the  tenants  to  appear  in  Easter  term  following. 
And  in  that  term,  the  defendants  having  obtained  leave  to  defend  as 
landlords,  entered  into  the  usual  rule  to  confess  lease,  entry,  and  ouster. 

The  jury  found  that  the  lessor  of  the  plaintiff  had  established  his  title, 
but  that  he  had  by  his  acts  confirmed  the  said  leases  of  1790. 

The  question  for  the  opinion  of  the  Court  was,  whether  the  lessor  of 
the  plaintiff  w;»s  entitled  to  maintain  this  ejectment  for  the  said  two  un- 
divided third  parts  of  the  premises  in  question,  or  for  either  of  them? 

If  the  Court  should  be  of  opinion  that  he  was  entitled  to  maintain  the 
same  for  both  or  for  either  of  them,  the  verdict  was  to  stand  for  the 
lessor  of  the  plaintiff  accordingly.  But  if  the  Court  should  be  of  opinion 
that  he  was  not  entitled  to  maintain  the  same  for  either,  then  a  nonsuit 
was  to  be  entered. 

Stephen  Serjt.  for  the  lessor  of  the  plaintiff,  contended  that  under  the 
foregoing  demise,  he  took  one  undivided  third  as  issue  in  tail  of  the  de- 
visor's grandson  Edward,  and  one  undivided  third  as  remainder-man  in 
tail,  under  the  will  of  Henry  Southouse,  the  manifest  object  of  the  devi- 
sor being  to  make  his  four  grandsons  tenants  in  tail,  with  cross  remain- 
ders between  them.  Doe  v.  Webb,  1  Taunt.  234;  IVatsoji  v.  Foxoti, 
2  East,  36;  Dyer,  303.  b.;  Cooper  v.  Jones,  3  B.  &  A.  425;  Holmes  v. 
Meynel,  Sir  T.  Raymond,  452;  Wright  \,  Holford,  Cow^.  2>\\  Ather- 
ionv.  Prje,  4  T.  R,  710;  1  VVms.  Saund.  135.  n.  h.;Je7ikinsv.  Church, 
Cowp.  482;  Doe  v.  Butcher,  Dougl.  51. 

Wilde  and  Adams  Serjts.  insisted  that  the  finding  of  the  jury  was  con- 
clusive as  to  the  confirmation,  and  warranted  by  the  facts,  as  a  party 
could  not  be  supposed  to  have  received  rent  ten  years  in  ignorance  of 
his  title. 

With  respect  to  the  cross  remainder,  admitting  that  it  was  a  question 
of  intention,  they  argued,  that  no  intention  to  create  cross  remainders 
could  be  collected  from  this  will,  but  rather  the  contrary,  since  the  tes- 
tator had  expressly  devised  to  his  grandsons  "that  part  that  belonged 
to  their  father,"  thereby  impliedly  excluding  the  part  that  belonged  to 
an  uncle. 

Stephen  was  stopped  in  reply. 

Best  C.  J.  \\\  this  case  the  father  and  the  uncle  of  the  lessor  of  the 
plaintiff  being  seised  in  tail,  each  granted  a  lease  for  ninety-nine  years 
of  one-third  of  the  premises  sought  to  be  recovered. 

That  granted  by  tiic  father  is  only  voidable  by  his  issue  in  tail,  and 
not  absolutely  void.  It  might,  therefore,  be  confirmed  by  the  lessor 
of  the  plain! ifi'. 

Whether  he  confirmed  was  a  question  of  fact,  and  the  jury  have  found 
he  did.  It  is  said,  indeed,  this  was  in  ignorance  of  his  title;  but  he 
ought  to  have  informed  himself,  and  if  he  omitted  to  do  so,  can  take  no 
advantage  of  his  own  neglect.  With  respect  to  the  other  third,  the 
lease  was  altogether  void,  as  against  the  lessor  of  the  plaintiff,  supposing 
there  were  cross  remainders  between  him  and  the  otiier  devisors. 

Enough  may  be  collectiul  from  this  will  to  show,  that  the  testator  did 
not  intend  that  any  part  of  his  property  should  go  over  till  all  the  issue 
of  his  grandsons  had  failed;  aqcl  the  question  has  been  properly  put  on 
the  simple  ground  of  intention. 

In  the  midst  of  all  the  darkness  of  this  illiterate  will,   we  can  grope 


510  Garner  v.  Shelley.  E.  T.  1829. 

our  way,  and  though  what  is  meant  by  "  to  the  last  liver,"  is  not  very 
intelligible,  there  are  the  words  "  for  want  of  issue  male  of  any  grand- 
son."    Therefore,  nothing  could  go  over  till  all  that  issue  was  extinct. 

Park  J.  It  is  almost  absurd  to  say  that  the  lessor  of  the  plaintiff  was 
ignorant  of  his  title.  If  the  property  was  valuable,  as  it  perhaps  is,  he 
would  of  course  enquire  into  the  title.  This  applies  only  to  one  third. 
As  to  the  other,  the  question  is,  Whether  an  intention  can  be  collected 
to  create  cross-remainders?  The  language  of  the  devise  over  is  the  ma- 
terial thing,  and  from  that  such  an  intention  may  sufficiently  be  collected. 

BuRROuGH  J.  and  Gaselee  J.  concurred. 

Judgment  for  the  lessor  of  the  plaintiff  as  to  one  third. 


GARNER  V.  SHELLEY  and  Others.— p.  477. 

By  the  rules  of  a  friendly  society,  a  medical  attendant  was  entitled  to  3».  per 
annum  from  every  member;  and  a  committee  of  the  society  were  authorized 
to  settle  all  disputes,  grievances,  &c.  relative  to  the  affairs  of  the  society,  sub- 
ject to  an  appeal  to  two  magistrates. 

The  plaintiff,  who  had  been  duly  appointed  medical  attendant,  was  dismissed  by 
the  committee  without  any  meeting  of  the  members  of  the  society  at  large,  and 
another  appointed.  Upon  an  application  to  magistrates,  they  recommended  a 
public  meeting;  which  being  convened  accordingly,  a  large  majority  of  the 
members  voted  for  the  plaintiff,  who  thereupon  sued  the  defendant,  the  trea- 
surer, for  the  3s.  received  to  the  use  of  the  medical  attendant: 

Held,  that  the  plaintiff  was  entitled  to  recover,  and  that  the  defendant  was  not 
exonerated  by  an  order  of  the  committee  not  to  pay. 

This  was  an  action  of  assumpsit,  in  which  the  declaration  contained 
counts  for  money  had  and  received  by  the  defendants  to  and  for  the  use 
of  the  plaintiff,  and  for  money  due  upon  an  account  stated  between 
them. 

The  cause  came  on  for  trial  at  the  last  Stafford  assizes,  when  the  jury 
found  a  verdict  for  the  plaintiff,  with  15/.  9s.  damages,  subject  to  the 
opinion  of  the  Court  upon  the  following  case: — 

The  plaintiff  was  a  surgeon  and  apothecary.  In  the  year  1821,  a 
friendly  society  was  established  at  Yoxall,  subject  to  certain  rules,  orders, 
and  regulations,  which  were  in  due  manner  allowed,  confirmed,  and  ap- 
proved by  justices  of  the  peace  assembled  at  a  general  quarter  sessions 
of  the  peace;  and  the  said  rules,  orders,  and  regulations,  as  well  as  the 
tables  of  the  said  society,  were  deposited  with  the  clerk  of  the  peace, 
and  enrolled  at  the  same  sessions.  Among  the  said  rules,  orders,  and 
regulations,  were  the  following;  viz. 

1st.  That  the  society  was  established  for  the  purpose  of  raising  by  sub- 
scription from  the  several  members  thereof,  and  by  voluntary  contribu- 
tions, a  stock  or  fund  for  their  mutual  relief  and  maintenance  in  old  age, 
sickness,  and  infirmity,  and  for  the  benefit  of  the  widows  and  representa- 
tives of  deceased  members  in  certain  cases,  and  for  no  other  purposes 
whatsoever. 

2d.  That  twelve  discreet  and  intelligent  persons,  members  of  that 
society,  should  be  annually  chosen  as  a  committee,  which  committee, 
or  any  five  of  them,  including  the  stewards  or  their  proxies,  should 
have  the  power  to  enquire  into,  settle,  and  determine  all  grievances, 
differences,  and  disputes  whatsoever,  which  might  or  should  arise  rela- 


5  Bingham,  477.  511 

tive  to  the  affairs  of  the  society,  save  and  except  that  the  parties  aggriev- 
ed might  appeal  to  any  two  magistrates,  as  empowered  by  the  acts  re- 
lating to  friendly  societies.  The  committee,  under  the  controul  of  the 
high  and  deputy  stewards,  should  have  power  to  lend  and  dispose  of  the 
society's  money  at  interest,  in  such  way  and  manner,  and  in  such  sums 
as  they  believed  to  be  most  advantageous  to  the  society,  taking  good 
and  proper  security  for  the  same.  The  old  committee  should  nominate 
and  appoint  the  persons  composing  the  new  one,  and  six  of  them  at 
least  should  be  annually  changed  by  ballot  immediately  after  the  new 
committee  was  chosen  and  formed.  They  the  said  committee  should 
agree  upon  and  appoint  three  suflBcient,  discreet,  and  intelligent  persons 
among  the  twelve  composing  such  committee  to  act  as  stewards,  the  one 
as  high  steward,  the  other  two  as  deputy-stewards,  to  assist  and  help 
him  the  said  high  steward  in  the  execution  of  his  office.  The  high 
steward,  in  all  matters  of  dispute  or  disagreement,  either  in  the  com- 
mittee or  society  at  large,  should  always  have  the  power  and  privilege 
of  the  casting  voice;  and  if  he  should  find  it  requisite  to  consider  further 
the  subject  under  discussion  or  in  dispute,  should  for  that  purpose,  be  at 
liberty  to  withhold  his  determination  for  the  space  of  one  month  or 
twenty-eight  days,  provided  the  subject  would  admit  of  such  delay. 
The  three  stewards  should  give  their  joint  bond  to  the  society  for  the 
stock  entrusted  to  their  care  and  disposal;  they  should  make  up  their  ac- 
counts, and  deliver  up  every  thing  belonging  to  the  society  to  the  suc- 
ceeding stewards  the  next  club-night  after  their  being  appointed,  or 
forfeit  10/. ;  and  no  action  or  suit  whatsoever  should  be  commenced  with- 
out the  approbation  and  consent  of  the  committee,  or  the  major  part 
of  them,  the  high  steward  having  in  that  case,  as  in  all  other  cases,  the 
privilege  of  the  casting  vote. 

16th.  That  each  member  should  pay  3s.  annually  to  the  society's  doctor, 
in  consideration  of  which,  in  case  of  sickness  or  lameness,  he  should  be 
entitled  to  the  necessary  medicines  and  attendance  his  situation  might 
require:  every  member  to  pay  the  doctor  whether  in  or  out  of  his  limits, 
provided  he  resided  not  more  than  five  statute-miles  from  Yoxall,  and 
the  first  payment  should  become  due  on  the  19th  March  1822. 

By  the  23d,  three  stewards,  whose  names  Were  therein  mentioned, 
were  appointed. 

When  the  society  was  established  in  1S21,  the  plaintiff  was  duly  ap- 
pointed the  doctor  to  the  society,  and  continued  to  fill  that  situation 
without  any  interruption  till  the  montli  of  August  1826;  but,  before  that 
time,  complaints  of  his  negligence  and  misconduct  as  such  doctor  had 
been  made  by  different  members  of  the  society  to  the  high  steward,  and 
to  some  of  the  members  of  the  committee. 

On  the  14th  August  182G,  a  meeting  of  the  committee  was  held,  at 
which  eleven  members  attended.  No  notice  of  that  meeting  was  given 
to  the  plaintiff.  After  the  committee  had  assembletl,  the  |)laintiff  was 
sent  for,  but  was  not  at  home,  and  did  not  alteiul.  A  Mr.  l-'ornybough 
was  also  sent  for.  At  this  meeting  the  complaints  against  the  plaintiff 
were  discussed,  but  no  evidence  was  given  of  the  facts,  and  a  vote  of  his 
dismissal,  and  the  appointment  of  Mr.  Fernyhough,  was  carried.  Eight 
persons  voted  for  Fernyhough,  and  two  for  the  plaintiff. 

The  following  was  a  copy  of  the  resolution  of  the  committee: — 

"Resolved,  that  Mr.  John  Garner,  the  surgeon  and  apothecary  of 
the  society,  be  henceforth    dismissed  from  that  office,    and  that  Mr. 


513  Gauneu  v.  Shelley.  E.  T.  1829. 

Joseph  Ferny  hough,  surgeon  and  apothecary,  he  appointed  to  succeed 
him,  and  a  proper  proportion  only  of  the  menihers'  subscription  to  the 
eurgeon  and  apothecary  be  paid  to  the  said  John  Garner  for  the  pe- 
riod he  has  acted  as  such  during  the  present  year  to  this  time,  and  that 
the  reni.inder  of  such  subscription  be  [)aid  to  the  said  Joseph  Ferny- 
liough.  Also  ordered,  tiiat  a  copy  of  the  following  notice  be  delivered 
to  Mr.  Garner  forthwith." 

"Sir, — You  are  hereby  informed,  that  the  committee  of  the  Yoxall 
New  Friendly  Society  having  met  this  day  to  consider  the  propriety  of 
continuii  g  you  as  surgeon  to  the  society,  it  is  agreed,  that  your  services 
shall  cease  from  this  day.  1  remain,  for  the  deputy-stewards  and  com- 
mittee, "  Yours,  &c. 

"John  Jackson." 

A  copy  of  such  notice  was  delivered  to  tlie  plaintiff  on  the  same  or  on 
the  following  day.  The  proportion  of  the  members'  subscription  up  to 
that  time  was  paid  to  the  said  plaintiff,  who  did  not,  however,  acquiesce 
in  the  dismissal,  but  did  continually  from  thence  attend  as  many  of  the 
members  of  the  society  as  would  permit  him  to  do  so,  amounting  to  more 
than  the  majority;  and  seventy-five  of  them,  the  whole  number  being 
from  100  to  110,  signed  a  paper  approving  of  him  as  the  doctor. 

The  Judge  left  it  to  the  Jury  to  say,  whether  the  proceedings  of  the 
committee  were  bona  fide  for  the  investigation  of  the  complaints,  or 
merely  for  the  purpose  of  getting  rid  of  the  j)laintiff,  and  appointing 
another  medical  man.  Thejury  found  the  latter,  and  said  the  plaintiff  was 
an  injured  man.  The  plaintiff  had  been  and  was  then  a  member  of  the 
society. 

The  defendants,  on  the  19th  March  1S27,  were  elected  stewardsof  the 
society,  and  continued  to  act  as  such  till  the  month  of  May  182S;  and  in 
the  early  part  of  that  year  received  from  each  of  the  several  members  of 
the  society,  according  to  the  usual  course,  the  sum  of  3s.  for  their  re- 
spective payments  to  the  society's  doctor,  under  the  sixteenth  rule,  for 
one  year,  ending  19th  March  1828,  which  sums  amounted  to  15/.  9s. 
Upon  the  11th  March  1S2S,  the  following  order  was  made  by  the  com- 
mittee, and  entered  upon  the  books  of  the  society: — "At  a  meeting  of  the 
stewards  and  committee  of  the  Yoxall  New  Friendly  Society,  held  at 
the  Golden  Cup  Inn,  in  Yoxall,  this  11th  day  of  March  1828,  ordered, 
that  the  sum  of  15/.  12.s.  be  paid  to  Mr.  Joseph  Fernyhough,  surgeon 
and  apothecary  to  the  said  society,  that  sum  being  the  amount  due  to  him 
for  medicines  and  attendance  for  and  on  the  sick  and  lame  members 
thereof,  we,  the  undersigned  stewards  and  commitleeof  the  society  afore- 
said, considering  the  said  Mr.  Joseph  Fernyhough  the  legally-appointed 
surgeon  and  apothecary  to  such  society;  and  we  also  further  ratify  and 
confirm  his  appointment  to  the  said  office.     As  vvitnessour  hands." 

This  was  signed  by  the  high  steward  and  ten  others,  members  of  the 
society. 

Disputes  having  arisen  respecting  the  aforesaid  vote  of  dismissal  of  the 
plaintiff,  the  committee  (including  the  present  defendants),  and  many 
members  of  the  society,  attended  before  two  of  the  justices  of  the  peace 
of  the  county  of  Stafford. 

It  was  denied  on  the  part  of  the  defendants,  that  the  magistrates  had 
authority,  under  the  statute?,  to  settle  the  matter  themselves  or  maktf 
any  order  re.specting  it;  but,  upon  their  recommendation,  a  public  meet- 


5  BiNciiAM,  477.  513 

ing  of  the  said  society  was  held  on  the  17lh  Decemher  1827,  of  which 
the  following  notice  was  given: — 

'*  Yoxall  New  Friendly  Society,  December  G,  1827. 

"It  having  been  agreed,  in  pursuance  of  the  recommendation  of  the 
magistrates  at  their  meeting  at  VVhichnor  Bridges  on  Saturday  last,  that 
the  votes  of  the  members  should  be  taken  at  the  next  club  meeting  to 
be  held  on  the  17th  December  instant,  for  a  surgeon  to  the  club,  you 
are  requested  to  attend  to  give  your  vote  on  that  occasion." 

The  meeting  was  attended  by  the  present  defendants,  who  were  stew- 
ards, the  rest  of  the  committee,  and  by  a  very  large  majority  of  the 
members  of  the  society;  and  at  such  meeting,  fifty-three  voted  for  Gar- 
ner, eleven  were  neuter,  and  three  voted  for  the  rival  surgeon. 

The  plaintiff,  before  the  action  was  brought,  demanded  the  money  of 
the  defendants,  who  refused  to  pay  him,  alleging  that  the  committee 
considered  JMr.  Fernyhough  to  be  the  legal  doctor. 

The  question  for  the  opinion  of  the  Court  was.  Whether  the  plaintiff" 
was  entitled  to  recover  from  the  said  defendants  the  said  sum  of  15/.  9*. 
above  demanded,  or  any  and  what  part  thereof?  If  the  Court  should 
be  of  opinion  that  the  plaintiff  was  so  entitled,  the  verdict  was  to  stand 
for  such  sum  as  they  should  think  fit;  if  not,  a  nonsuit  was  to  be  entered. 

Spankie  Serjt.  for  the  plaintiff,  was  stojjped  by  the  Court. 

liitssell  Serjt.  for  the  defendants,  contended,  first,  that  under  the 
second  rule  for  settling  all  disputes,  &c.  the  committee  had  the  power 
to  dismiss  the  doctor  without  the  concurrence  of  the  rest  of  the  society, 
and  that,  if  so,  the  plaintiff,  having  been  duly  dismissed,  was  incom- 
petent to  maintain  the  present  action; 

And  secondly,  that  at  all  events,  the  defendants,  having  acted  under 
the  orders  of  the  committee  in  refusing  to  pay  the  plaintifl',  were  not 
liable  to  be  thus  sued.  The  59  G.  3.  c.  128.  s.  9.  made  the  rules  of  the 
society  binding,  subject  to  an  appeal  under  33  G.  3.  c.  54.  s.  15;  and, 
after  Fernyhough  had  been  duly  appointed,  the  defendants  would  have 
no  answer  to  an  action  by  him  for  the  very  sum  now  claimed  by  the 
plaintiff. 

Best  C.  J.  I  am  opinion  tliat  this  action  is  maintainable.  It  does 
not  appear  that  the  matter  in  wiiich  the  committee  have  taken  upon 
themselves  to  decide,  is  a  dispute  or  grievance  wiiich  it  was  within  tlieir 
province  to  determine  on;  and  the  jury  liave  founil  in  effect,  that  they 
were  not  acting  so  much  with  a  view  to  remedy  a  grievance,  as  to  pro- 
mote a  job  for  bringing  in  as  meiiical  attendant  a  friend  of  some  of  the 
influential  members.  Then  the  parties  go  before  a  magistrate,  a  meeting 
is  convened  pursuant  to  his  recommendation,  and  it  is  agreed,  bv  a  great 
niajority  of  the  society,  that  the  plaintiff  shall  i)c  restored.  After  that, 
what  had  been  done  I)cfore,  was  undone.  As  to  any  claim  of  Ferny- 
hough, if  the  defendants  pay  him,  they  will  do  so  in  their  own  wrong; 
hut,  at  all  events,  pa)  ing  the  wrong  person  will  not  exonerate  them  from 
paying  the  right. 

Pa  UK  J.   concurred. 

BtfRiioirr.H  J.  To  have  given  any  colour  to  the  dismissal  of  the  plain- 
tiff, there  should  have  been  a  summons,  evidence,  and  hearing.  TIkm-c 
is  no  proof  that  the  dismissal  was  nuthoriz'.'d,  and  our  judgment  nuisl  ho 
for  ihe  plaintiff. 

Gaski.kk  ,I.  ronrurrrd. 

Judgment  for  the  jil.iinlin. 
vol,.   XV.  65 


514  Evans  v.  VVhyle.  E.  T.  1829. 


J.  EVANS  V.  WHYLE p.  485. 

Defendant  guaranteed  the  payment  of  gold  with  which  plaintiff  should  supply 
a  goldsmith  for  the  purposes  of  his  trade.  Plaintiff  discounted  bills  for  the 
goldsmith, and  gave  him  for  them  partly  gold  and  partly  money;  the  gold  was  ap- 
plied to  the  goldsmith's  trade,  but  the  goldsmith  did  not  indorse  the  bills : 

Held,  that  the  defendant  was  not  liable  under  his  guarantee  for  the  gold  so  fur- 
nished. 

The  defendant  guaranteed  the  plaintiff,  to  the  extent  of  50/.,  pay- 
ment for  any  gold  he  might  supply  to  Evan  Evans,  a  working  gold- 
smith, for  the  purpose  of  carrying  on  his  business. 

After  supplying  Evan  Evans  for  some  tin\e,  the  plaintiff,  upon  the  ap- 
plication of  E.  E.  discounted  certain  bills  of  exchange  for  him,  and  fur- 
nished the  amount  of  the  bills,  partly  in  money,  and  partly  in  gold,  de- 
ducting from  the  gold  the  usual  charge  for  credit  for  the  length  of  time 
the  bills  had  to  run,  and  from  the  money,  interest  at  the  same  rate. 
Evan  Evans  did  not  indorse  the  bills,  but  the  gold  was  applied  by  him 
in  the  purposes  of  his  business. 

The  bills  having  been  dishonoured,  the  plaintiff  sue'd  the  defendant 
on  his  guarantee.  At  the  trial  before  Best  C.  J.  London  sittings  after 
Hilary  term,  it  was  objected,  on  the  part  of  the  defendant,  that  the  plain- 
tiff's gold,  although  applied  by  E.  E.  to  the  purposes  of  his  business, 
was  not  sold  by  the  plaintiff  to  him  for  the  carrying  on  of  that  business 
within  the  meaning  of  the  guarantee,  but  was  in  effect  part  of  the  pur- 
chase-money paid  by  the  plaintiff  for  bills  he  had  discounted,  and  which, 
having  so  purchased  without  E.  E.'s  indorsement,  he  had  taken  at  his 
own  risk. 

The  learned  Chief  Justice,  however,  thinking  the  transaction  a  supply 
of  gold  within  the  terms  of  the  guarantee,  a  verdict  was  found  for  the 
plaintiff;  which 

Wilde  Serjt.,  upon  the  grounds  urged  at  the  trial,  obtained  a  rule  nisi 
to  set  aside- 

Taddy  Serjt.  shewed  cause. 

Wilde,  contra,  cited  Enily  v.  I-ye,  15  East,  7;  Exparte  Isbesiery  1 
Rose,  21. 

Best  C.  J.  The  opinion  which  I  entertained  at  the  trial  has  been 
changed,  and  I  think  this  rule  ought  to  be  made  absolute.  This  is  an 
action  on  a  guarantee,  touching  the  sale  of  gold  from  the  plaintiff  to 
Evan  Evans;  and  it  was  understoofl  between  the  parties,  that  the  gold 
furnished  to  Evan  Evans  was  to  be  used  in  his  trade.  The  question 
which  has  arisen  is,  Whether  gold  advanced  by  the  plaintiff,  together 
with  money,  in  discounting  bills  for  Evan  Evans,  is  gold  supplied  with- 
in the  meaning  of  the  guarantee?  I  think  it  is  not.  The  defendant 
only  meant  to  pay  for  such  gold  as  was  sold  to  the  original  debtor:  this 
was  not  sold  by  the  plaintiff,  but  paid  on  the  purchase  of  bills  of  ex- 
change, and  the  cases  cited  clearly  establish  the  distinction  between 
payment  for  goods  by  bills,  and  transferring  bills  when  they  are  dis- 
counted. This,  therefore,  was  not  a  transaction  within  the  meaning  of 
the  guarantee,  by  which  the  defendant  was  proposed  to  be  responsible 
for  gold  sold  to  Evan  Evans  in  the  way  of  his  trade.     Guarantees  ought 


5  Bingham,  485.  515 

to  receive  a  strict  construction;  and  they  should  be  so  drawn  up  as  to 
embrace  in  terms  the  dealing  intended  to  be  guaranteed. 

Park  J.  The  distinction  is  to  be  collected  from  the  cases  which 
have  been  cited.  If  a  party  sells  goods,  and  takes  for  them  a  bill  of 
exchange  which  is  not  honoured,  he  is  remitted  to  his  original  consider- 
ation; but  if  he  discount  bills  for  money  to  one  who  does  not  even  in- 
dorse them,  it  is  a  purchase  of  the  bills  at  his  own  risk. 

The  rest  of  the  Court  concurred,  and  the  rule  for  a  new  trial  was 
made 

Absolute. 


TERRINGTOxX,  Assignee  of  PULLAN,  a   Bankrupt,    v.    HAR- 
G REAVES  and  Others.— p.  489. 

The  bankrupt  act,  6  G.  4.  c.  16.  s.  82.,  is  retrospective. 

Therefore,  where  the  bankruptcy  took  place  June  26,  1822,  and  the  bankrupt 
paid  the  defendant,  who  knew  of  his  insolvency,  a  sum  of  money  August  4, 
1822,  and  a  commission  was  sued  out  against  the  bankrupt  in  May  1823  :  Held, 
that  the  assignees  could  not,  subsequently  to  the  time  when  the  6  G.  4.  c.  16. 
came  into  operation,  sue  the  defendant  for  money  had  and  received. 


HOVILLv.  STEPHENSON.— p.  493. 

Where  the  plaintiff,  in  an  action  on  a  charter-party,  had  communicated  to  the 
attesting  witness  an  interest  in  the  adventure  subsequently  to  the  execution  of 
the  instrument :  Held,  that  evidence  of  his  handwriting  was  inadmissible. 

This  was  an  action  upon  a  charter-party  At  the  trial  before  Park 
J.,  London  sittings  after  Hilary  term,  it  appeared  that,  after  the  execu- 
tion of  the  instrument,  the  attesting  witness  was,  by  agreement  with 
the  plaintiff,  admitted  to  a  share  of  the  profits  which  the  plaintiff  ex- 
pected to  arise  from  his  bargain.  An  objection  was  taken  to  the  com- 
petency of  tlic  witness,  and  his  evidence  was  rejected,  he  having  re- 
fused to  release  his  interest.  It  was  then  proposed  to  prove  his  hand- 
writing. This  proof  was  objected  to,  and  the  objection  allowed  by 
Park  J.,  who  tried  the  cause.  The  plaintiff,  not  being  able  to  prove 
the  charter-party,  was  nonsuited. 

Tudih/  Serjt.  obtained  a  rule  nisi  to  set  aside  this  nonsuit,  on  the 
ground  that  the  evidence  offered  by  the  plaintiff  had  been  improj)erIy 
rejected. 

PVildc  Serjt.  shewed  cause,  citing  G^om  v.  Tracei/,  1  P.  Wms.  287; 
IfonnjiDoofJ v.  Peacock,  3  Campb.  19G;  Swire  v./k-i/,  5 'V.  K.  371; 
Forres (cr  v.  Piifou,  1  M.  &  S.  9. 

7>/(A/y  referred  to  Godfrey  \.  Nan  is,  1  Str.  31;  Buckley  \.  Smith, 

2  Esp.  fi97. 

Lar.  adv.  viiU. 

Best  C.  J.  This  is  an  action  upon  a  charter-party.  After  the  ex- 
ecution of  the  instrument,  the  attesting  witness  was,  by  agreement 
with  the  phiintiff,  admitted  to  a  share  of  the  [)rolits  which  the  plaintiff 
rxpccled  to  derive  froiri  his  barg.iiii.  An  objection  wns  t;ikeri  to  the 
competency  of  the  witnesn,   and    liis  cvirlence  was  M'jurted,    lie  having 


.^16  HoviLi,  I'.  Stephenson.  E.  T.  1829. 

refused  to  release  his  interest.  It  was  then  proposed  to  prove  his 
liandwriting:  this  proof  was  objected  to,  and  the  objection  allowed  by 
my  brother  Pork,  who  tried  the  cause.  The  plaintiif,  not  being  able 
to  prove  the  charter-party,  was  nonsuited. 

A  motion  has  been  made  to  set  aside  this  nonsuit.  My  brother  Bur- 
rous;h  was  absent  when  this  case  was  argued,  but  the  rest  of  the  Court 
arc  of  opinion  that  this  evidence  was  properly  rejected. 

There  are  many  cases  where  a  subscribing  witness  has  acquired  an 
interest  after  the  execution  of  the  instrument  attested  by  him,  in  which 
it  has  been  decided  that  proof  of  his  handwriting  may  be  received  to 
establish  such  instrument. 

The  handwriting  of  a  subscribing  witness  who  has  been  appointed  an 
executor  or  administrator,  or  has  married  the  person  to  whom  the  in- 
strument was  given,  has  been  allowed  to  be  proved.  We  do  not  dis- 
pute the  authority  of  any  of  those  decisions;  on  the  contrary,  we  should 
be  disposed  to  extend  the  principle  established  by  them  to  the  case  of  a 
man  entering  into  a  partnership,  and  becoming  interested  in  instru- 
ments by  acquiring  a  share  m  the  credits,  and  taking  upon  himself  the 
responsibilities  of  the  firm  of  which  he  becomes  a  member. 

Necessity  requires  that,  in  all  these  cases,  such  evidence  should  be 
received,  as  otherwise  parties  must  lose  the  rights  secured  by  the  in- 
struments attested,  or  forego  accepting  of  situations  most  important  to 
their  welfare. 

It  would  be  a  hard  thing,  if  the  law  were  to  say  that  a  man  should 
not  become  an  executor  or  administrator,  or  accept  a  beneficial  partner- 
ship, without  giving  up  debts  due  to  the  estates  in  which  he  has  acquir- 
ed  an  interest.  But,  in  the  present  case,  the  witness  has  only  obtained 
an  interest  in  the  contract  which  he  was  to  prove,  and  that  interest  he 
derived  immediately  from  the  plaintiff,  who  proposed  to  call  him.  The 
plaintiff  cannot  complain  that  his  witness  is  disqualified,  when  he  him- 
self has  been  the  cause  of  his  disqualification. 

That  the  interest  was  considered  by  the  witness  to  be  so  valuable  as 
to  be  likely  to  affect  his  testimony,  is  proved  by  the  circumstance,  that 
he  refused  to  release  it.  It  would  be  improper  to  allow  a  plaintiff  to 
give  such  an  interest  to  a  person,  in  the  particular  transaction  in  which 
he  is  obliged  to  call  him  as  a  witness,  as  is  likely  to  bias  his  testimony. 

A  learned  writer  (who  has  devoted  too  much  of  his  time  to  the  theo- 
ry of  jurisprudence,  to  know  much  of  the  practical  consequences  of  the 
doctrines  he  has  published  to  the  world,)  has  said,  that  interest  should 
only  operate  against  the  credit,  and  not  be  an  objection  to  the  compe- 
tency of  a  witness.  This  doctrine  is,  however,  contrary  to  our  law; 
for,  according  to  that  law,  a  direct  interest  to  the  smallest  amount  in 
any  person,  will  prevent  such  j)erson  from  being  examined  as  a  witness. 

This  rule  does  not  stand  upon  the  principle  that  Mr.  Starkie  supposes, 
viz.  that  the  law  can  make  no  distinction  between  the  degrees  of  inte- 
rest; but  upon  this,  that  if  the  party  declines  releasing  his  interest, 
whatever  may  be  its  amount,  it  seems  that  he  feels  it  of  importance  to 
him,  and  therefore  cannot  be  trusted  as  a  witness  in  a  suit  instituted  for 
the  recovery  of  it.  A  feeling  of  interest  will,  in  spite  of  the  utmost 
efforts  of  the  most  conscientious  man,  often  so  warp  his  memory,  as  to 
prevent  him  giving  an  accurate  account  of  any  transaction  in  which  he 
is  concerned. 

Considering  the  interest  of  parlirjs,   and   that   which  is  of  still  more 


5  Bingham, 493.  517 

importance — the  interests  of  the  public  and  of  religion,  which  require 
that  every  possible  means  should  be  used  to  prevent  false  evidence,  the 
law  cannot  be  too  strict  in  excluding  the  testimony  of  interested  wit- 
nesses. It  is  true  that  prejudices  will  often  influence  the  mind  of  a 
witness  as  much  as  interest;  but  this  is  an  evil  that  cannot  be  remedied. 
If  we  want  the  testimony  of  witnesses,  we  must  be  content  to  take  it 
with  all  the  defects  that  the  infirmities  of  those  who  give  it  may  occa- 
sion. We  may  require  a  witness  to  release  his  interest,  but  we  cannot 
compel  him  to  release  himself  from  his  prejudices.  Because  we  cannot 
do  all  we  wish,  we  should  not  fail  to  do  all  we  can  to  get  at  truth. 

The  case  of  Forrester  v.  Pigou  is  stronger  than  the  present.  The  plain- 
tiff in  that  case  gave  the  witness  an  interest  after  the  cause  of  action 
accrued,  without  the  privity  of  the  defendant,  and  yei;  the  Court  would 
not  allow  the  defendant  to  call  him.  If  a  plaintiff  in  such  a  case  as 
this  had  a  right  to  say,  you  must  either  allow  me  to  call  a  witness  whom 
I  have  rendered  interested  to  support  my  claim,  or  allow  me  to  prove 
his  handwriting,  you  put  a  defendant  under  the  necessity  of  having  a 
case  proved  against  him  by  an  interested  witness,  or  giving  up  the  op- 
portunity of  obtaining  a  knowledge  of  any  circumstances  that  occurred 
at  the  time  of  the  execution  of  the  instrument  by  the  cross-examination 
of  the  attesting  witness. 

Let  the  rule  for  setting  aside  the  nonsuit  be  discharged. 

Rule  discharged  accordingly. 


KNOWLES  V.  BLAKE  and  THOMAS.— p.  49.9. 

Plaintiff  distrained  defendant's  cattle  damage  feasant,  and  went  to  apprize  de- 
fendant :  during  his  absence  the  cattle  escaped  for  half  an  hour  into  defendant's 
ground,  whence  plaintift",  on  his  return,  drove  them  to  his  own  yard  :  defend- 
ant having  taken  them  thence. 

Held,  no  rescue. 

Rescue.  At  the  trial  before  Garrow  B.,  last  Sussex  assizes,  it  ap- 
peared that  the  plaintiff's  son,  having  seen  the  defendant  Blake's  horses 
trespassing  in  his  father's  field,  was  in  the  act  of  driving  tbem  to  the 
pound,  when  he  left  them  fur  the  purpose  of  apprizing  the  defendant 
Blake  of  what  had  happened. 

While  he  was  out  of  sight  on  this  errand,*  the  horses  strayed  from  the 
j)laintiff's  field  into  the  defenilant  Blake's  shrubljcry,  where  they  re- 
mained nearly  half  an  hour;  at  the  expiration  of  which  time,  the  jilain- 
tiff's  son,  having  failed  to  obtain  redress  from  Blake,  drove  the  horses 
out  of  the  shruijbery  into  the  plaintiff's  yard,  whence  they  were  short- 
ly afterwards  rescued  by  the  defendants. 

Thomas  suffcreil  juflgment  by  deliuilt. 

It  was  objected  that  lu^re  was  no  rescue,  because  the  distress  liad  been 
al)andoned  l)y  the  plaintifl's  son  allowing  the  cattle  to  escape  into  and 
remain  in  the  shrubhcry,  whence  he  had  no  right  to  remove  them. 

A  verdict  was  found  for  the  plaintiff,  subject  to  a  motion  to  set  it 
aside. 

Cross  Scrjt.  accordingly  moved  to  set  aside  the  verdict,  and  enter  a 
verdict  for  the  defendant  instead.      He  cited  Co.  Lit.  161  a. 


518  EvEUETT  V.  Desborougii.  E.  T.  1829. 

^^ndrcws  Scrjt.  contra.     No  precise  form  of  words  is  necessary  for  a 

distress.     It  is  suflicient  if  the  intent  to  distrain  be  manifest.     Clement 

V.  Milner,  3  Esp.  N.  P.  C.  95,   [Best  C.  J.    That  point  was  decided  in 

If 'ooci  v.  Nunn,  5  B'wE.  10.1  Co.  Lit.  161  a.  n  j  u 

'  °        -"  Cur.  adv.  vuU. 

Best  C.  J.  Two  questions  have  been  raised  in  this  cause.  Upon 
the  first,  we  all  think  that  the  distress  was  sufficiently  made,  for  no 
precise  act  or  form  of  words  is  essential  to  a  distress.  But  distress  is 
a  matter  of  strict  right;  and  if  he  who  distrains,  damage-feasant,  permits 
the  cattle  to  escape,  he  must  look  for  some  other  remedy.  A  mere 
escape  for  an  instant,  indeed,  if  the  distrainor  followed,  would  not  be  an 
abandonment  of  the  distress;  for  Lord  Coke  says,  "  When  a  man  hath 
taken  a  distresse,'and  the  cattle  distreyned  as  he  is  driving  of  them  to 
the  pownd  go  into  the  house  of  the  owner,  if  he  that  took  the  distresse 
demand  them  of  the  owner,  and  he  deliver  them  not,  this  is  a  rescous 
in  law."  Co.  Lit.  161a.  But  here  the  plaintiflf's  son  permitted  the 
horses  to  stay  in  the  defendant's  shrubbery  for  half  an  hour:  they  were 
not  demanded  during  that  time;  and  that  was  an  abandonment  of  the 
right  of  freshly  following.  Lord  Coke  says,  "If  the  cattle  of  them- 
selves after  the  view  go  out  of  the  fee,  then  cannot  the  lord  distreyne 
them."  Ibid.  And  in  Vasper  v.  Eddows,  Holt,  257,  Lord  Holt  says, 
"If  a  distress  for  damage-feasant  dies  in  pound,  or  escapes,  the  party 
shall  not  distrain  de  novo;  but  if  it  were  for  rent,  in  either  case,  he 
may  distrain  de  novo."  The  present  is  a  stronger  case  than  that,  for 
the  cattle  taken  had  never  been  in  the  pound.  Therefore,  our  judgment 
must  be  for  the  defendant  Blake. 

Judgment  accordingly. 


ARMITAGE  v.  BERRY  and  Another.— p.  501. 

A  note  for  100/.,  pavable  to  A.  B.  or  order  on  demand,  is  subject  only  to  a  stamp 

of  3s.  6d. 


EVERETT  V.  DESBOROUGH.— p.  503. 

1.  In  an  insurance  upon  the  life' of  another,  the  life  insured,  if  applied  to  for  in- 
formation, is,  in  giving  such  information,  impliedly  the  agent  of  the  party  in- 
Buring,  who  is  bound  by  his  statements,  and  must  suffer  if  they  are  false, 
although  he  is  unacquainted  with  the  life  insured,  and  the  servant  of  the  in- 
surance office  undertakes  to  do  all  that  is  required  by  his  office. 

2.  Plaintiff  effecting  an  insurance  on  the  life  of  H.,  with  whom  he  was  unacquaint- 
ed, desired  the  agent  of  the  insurance  office  to  do  all  that  was  requisite.  The 
agent  knew  H.  well,  and  made  the  usual  enquiries.  One  of  the  terms  of  the 
contract  was,  a  reference  to  the  usual  medical  attendant  of  the  life  insured. 

H.  having  given  a  false  reference  :  Held,  that  the  plaintiff  could  not  recover. 

Assumpsit  on  a  policy  of  insurance,  effected  for  the  plaintiff  on  the 
life  of  James  House  with  the  Atlas  Insurance  Company,  of  which  the 
defendant  was  the  secretary. 

By  the  policy,  certain  conditions  on  the  back  of  it  were  declared  to 
be  a  part  of  the  policy  as  much  as  if  they  had  been  repeated  in  the 
body  of  it. 


5  Bingham,  503.  519 

These  conditions  were  as  follow,  in  two  columns: — 
Column  the  first; — 
<' Conditions  of  Life  Assurance. 

"■  Persons  proposing  to  eflfect  Life  Assurance,  will  be  required  to 
state  the  following  particulars;  viz. 

*'  1.  Name  and  residence  of  the  party  by  whom  the  proposal  is 
made. 

"  2.  Name,  residence,  and  profession  of  the  person  whose  life  is  to 
be  assured;  and,  in  case  of  an  assurance  upon  survivorship,  the  name, 
residence,  and  profession  of  each  party. 

"  3.   Place  and  date  of  birth;  and  age  next  birth-day. 

*'  4.   Sum  to  be  assured,  and  the  term. 

**  5.  Whether  afflicted  with  gout,  asthma,  fits,  spitting  of  blood,  or  any 
other  disorder  which  tends  to  shorten  life. 

**  6.  Whether  the  party  has  had  either  the  small-pox  or  cow-pox. 

"  7.  Whether  the  party  will  attend  personally,  either  at  the  office  in 
London,  or  before  one  of  the  company's  agents. 

*'8.   Whether  employed  in  the  military  or  naval  service. 

*'  9.  Names  and  residences  of  two  gentlemen  to  be  referred  to,  re- 
specting the  present  and  general  state  of  health  of  the  life  to  be  assured. 
One  to  be  the  usual  medical  attendant  of  the  party. 

"A  declaration  as  to  all  the  above  points  will  be  considered  as  the 
basis  of  the  contract  between  the  assured  and  the  company.  If  such  a 
declaration  be  not  in  all  respects  true,  the  policy  will  become  void,  and 
the  premium  that  may  have  been  paid  will  be  forfeited." 

Column  the  second; — 

<'  10.  No  assurance  to  be  in  force  until  the  premium  has  been  paid; 
nor  will  any  policy  be  considered  valid  for  more  than  fifteen  days  after 
the  expiration  of  the  period  limited  therein,  unless  the  premium,  con- 
ditioned for  the  renewal  of  such  policy,  shall  have  been  paid  within 
that  period,  and  the  printed  form  of  office-receipt  given.  But  such  as- 
surances may  be  revived  at  any  period,  not  exceeding  three  months 
after  their  expiration,  on  satisfactory  proof  being  given  to  the  directors 
of  the  unimpaired  state  of  the  health  of  tlie  life  assured,  and  on  pay- 
ment of  the  premium,  with  an  addition  of  ').?.  for  every  100/.  assured. 

"11.  Policies  will  become  void  if  the  parties,  whose  lives  have  been 
assured,  shall  go  beyond  the  limits  of  Europe,  or  shall  die  on  the  high 
seas,  Cexcept  in  passing,  during  peace,  in  king's  ships  or  packet  or 
passage  vessels  from  any  one  part  of  the  United  Kingdom  of  Great 
Britain  and  Ireland  to  any  other  part  thereof;  or  in  passing  direct,  by  a 
similar  conveyance,  from  and  to  any  port  in  Great  Britain,  to  and  from 
any  port  between  Rotterdam  and  Brest,  both  inclusive,  or  to  and  from 
Guernsey,  Jersey,  Aldcrney,  or  Sark,)  unless  sjiecial  permission  sball 
have  Ijcen  granted  by  flic  directors,  which  may  be  obtained  on  the  par- 
ties attending  personally  at  the  oflice,  to  give  every  n^fpiisilc  explana- 
tion, and  paying  such  extra  premium  as  the  directors  may  deem  ade- 
quate to  the  risk  incurred. 

"  12.  Policies  will  also  be  void  if  the  parties  whose  lives  have  been 
assured,  shall  be  actually  employed  in  any  military  or  naval  service 
whatever. 

"  13.  Assurances,  made  by  persons  on  their  own  lives,  will  be  void 
if  they  die  by  the  hands  of  justice,  by  duelling,  or  by  suicide.      But 


520  EvEnETT  V.  Dksborough.  E.  T.  1829. 

should  the  families  of  such  persons  be  left  in  distress  and  poverty,  the 
directors,  in  their  discretion,  will  niake  such  allowance  in  respect  of  the 
policies  of  the  deceased  as  tiiey  may  deem  just  and  reasonable. 

*•  14.  Assignments  of  life  policies  may  be  made  without  giving  notice 
to  the  company. 

♦'  15.  Persons  eflTecting  assurances  on  other  lives  than  their  own, 
will  be  required  to  state  the  nature  of  the  interest  they  possess  in  such 
lives. 

**  16.  All  claims  upon  the  company  will  be  paid  within  three  months 
after  satisfactory  prooi  shall  have  been  produced  of  the  death  of  the  per- 
sons upon  whose  lives  assurances  have  been  effected. 

<•'  17.   In  cases  of  assurances  in  Ireland,  the  company  undertake  to 
appear  in  the  courts  of  law  there  to  any  action  commenced  against  them. 
"London,  27th  December,  1825. 

"  By  order  of  the  Directors, 

"Henry  Desborough,  Jun. 

"  Secretary." 

The  declaration  in  the  cause  stated,  that  the  plaintiff  caused  to  be  made 
a  certain  policy  of  assurance,  whereby  the  Atlas  Company,  "  relying  on 
the  truth  of  a  certain  declaration  made  by  the  plaintiff  in  compliance 
with  the  conditions  on  the  policy  indorsed,  (vvherein  it  was  declared 
that  the  age  of  House  did  not  exceed  forty-four  years;  that  he  had  had 
the  small-pox;  had  not  had  the  gout;  had  not  suffered  a  spitting  of 
blood;  and  was  not  and  had  never  been  afflicted  with  asthma  or  fits,  or 
with  any  disorder  which  tended  to  shorten  life,)  agreed,  in  considera- 
tion of  a  premium  of  37/.  lis.  Qd.,  to  pay  him  1000/.  in  case  James 
House  should  die  within  a  year;  provided  that  the  policy  should  be 
subject  to  the  printed  conditions  indorsed  thereon,  in  the  same  manner 
as  if  the  same  were  there  actually  repeated,  and  adapted  to  that  present 
case. "(a)  And  by  those  conditions  it  was  expressed  and  declared,  that 
persons  proposing  to  effect  life-insurance  would  be  required  to  state  the 
following  particulars,  &c. :  (inter  alia)  the  names  and  residences  of  two 
gentlemen  to  be  referred  to,  respecting  the  present  and  general  state  of 
health  of  the  life  to  be  assured;  one,  to  be  the  usual  medical  attendant 
of  the  party: — a  declaration  as  to  all  the  above  points  would  be  consi- 
dered as  the  basis  of  the  contract  between  the  assured  and  the  company. 
And  the  plaintiff  averred,  that  he  did  make  a  declaration  according  to 
the  requisitions  of  the  said  printed  conditions,  and  that  the  declaration 
so  by  him  made,  and  referred  to  in  the  policy,  was  in  all  respects  true. 
He  then  averred  the  death  of  House,  and  the  defendant's  refusal  to  pay. 

The  defendant  pleaded  the  general  issue;  and  paid  the  amount  of  the 
premium  into  Court,  upon  a  count  for  money  had  and  received. 

At  the  trial  before  Gaselee  J.,  the  following  were  the  circumstances 
proved  on  the  part  of  the  plaintiff: 

The  plaintiff  being  known  to  possess  some  leasehold  property,  deter- 
minable on  the  life  of  House,  was  applied  to  by  Lye,  agent  of  the  Atlas 
Company  at  Warminster  (near  which  place  the  plaintiff  and  House  resi- 
ded), to  effect  an  insurance  with  the  Atlas  Company. 

The  plaintiff  agreed  to  insure  1000/.;  but  as  he  had  never  seen  House, 
and  knew  nothing  of  him,  he  told  Lye  to  make  the  requisite  inquiries, 
and  to  do  all  that  was  proper  in  the  business. 

(a)  The  passage  between  inverted  commas  is  the  exact  langiiag<^  of  the  body 
of  the  policy  set  out  in  the  past  tense. 


5  Bingham,  503.  521 

House,  who  at  this  time,  and  for  six  months  preceding,  had  heen  re- 
siding with  his  mother,  managing  a  farm  of  hers  near  Warminster,  was 
a  remarkably  handsome  athletic  man,  bearing  all  the  external  indications 
of  rude  health;  and  was  believed  by  Lye,  who  had  known  him  since 
his  birth,  and  by  all  the  inhabitants  of  Warminster,  to  be  the  healthiest 
and  stoutest  man  of  that  healthy  district.  He  bore  a  good  character, 
and  was,  while  residing  there,  of  remarkably  temperate  and  regular 
habits. 

Lye  called  on  him  at  his  mother's,  and  at  a  house  in  Bath  (sixteen 
miles  oflf),  where,  previously  to  the  last  six  months,  he  had  resided  for 
some  years. 

In  answer  to  the  inq^uiry  "  who  was  his  usual  medical  attendant?" 
House  said,  "  I  have  never  had  occasion  for  a  doctor:  sometimes  I  have 
taken  Harvey's  quack  pillsj  but  Mr.  Vicary,  of  Warminster,  knows  as 
much  of  me  as  any  man," 

JNIr.  Vicary,  a  respectable  and  intelligent  medical  man,  had  never 
attended  House  professionally,  but  had  known  him  from  his  birth,  and 
had  attended  the  rest  of  his  family. 

In  a  written  communication  made  by  him  to  the  Atlas  oflice,  and  in 
his  testimony  on  the  trial,  he  stated  that  he  had  never  seen  a  stronger 
or  healthier  man. 

Lye  transmitted  to  the  office  a  statement  made  by  himself,  in  which, 
among  other  things,  it  was  declared,  that  House  referred  to  Mr.  V^icary 
as  his  usual  medical  attendant.  This  statement  occupied  half  the  sheet 
of  a  letter  and  was  signed  by  Lye:  Lye  shewed  this  to  the  plaintifT,  and 
was  beginning  to  read  it  over,  when  the  plaintiff  said,  "I  dare  say  it  is 
all  correct;"  and  on  the  other  half  sheet  tlic  plaintiff  signed  a  separate 
declaration,  that  House  had  had  the  small-pox;  had  not  had  the  gout, 
&.C. ;  was  not  afflicted  with  any  disorder  tending  to  shorten  life;  and 
that  his  age,  residence,  and  occupation  were  as  tlierein  described. 

On  the  part  of  the  office  it  was  proved,  that  House,  when  he  resided 
at  IJath,  had  been  wont  occasionally  to  indulge  in  extraordinary  fits  or 
bouts  of  intoxication.  At  these  times  he  would  he  drunk  day  and  night 
incessantly  for  ten  days,  a  fortniglit,  or  oven  three  weeks,  swallowing 
any  thing  and  every  thing  that  came  in  his  way.  He  was  always 
attended  after  these  bouts  by  his  neighbour  Harvey,  a  quack  doctor,  who 
bled  and  pitrgefl  him  copiously.  He  went  over  to  Bath,  from  his  mo- 
ther's, shortly  before  the  insurance  was  effected,  had  one  of  these  bouts, 
— recovered, — and  died  suddenly  at  his  mother's,  a  few  days  afterwards. 

These  facts,  however,  and  Harvey's  attendance,  were  unknown  to 
the  plainlifl',  to  Lye,  and  to  the  inhabitants  of  ^\'arminslcr  generally^ 
and  Mr.  Vir.ary,  llic  surgeon  who  examined  House  when  the  insurance 
was  effected,  asserted  at  the  trial,  that  wliatevcr  his  habits  might  have 
been,  they  bad  at  the  time  of  the  insurance  jiroduccd  no  j)(.iTfj)tiblc 
effect  upon  his  appearance  or  constitution. 

On  the  part  of  the  office  it  was  contended,  that  these  bouts  of  intoxi- 
cation were  a  material  circumstance,  the  non-disclosure  of  which  avoid- 
ed the  policy;  and  that  at  all  events,  it  was  a  condition  precedent  to  any 
liability  on  the  part  of  the  office  that  they  should  have  been  iuforini-d  of 
the  name  of  House's  usual  medical  attciuh-nt ;  and  that  this  coiuiilion 
liad  been  nogh^ctcd,  Harvey  having  been  his  usual  medical  attendant, 
and  not  Virnry. 

To  this  it  was  answered,  first,  that  the  plaintiff's  wnnantj-  was  only 

vol,,  jcv.  GG 


522  EvERKi'T  V.  Desborough.   E.  T.  1829. 

against  any  disorder  tending  to  shorten  life:  that  he  had  not  warranted 
against  pernicious  habils\  tiiat  he  could  not  be  expected  to  disclose  what 
he  never  knew;  and  that  at  all  events  it  was  sufBcient  if  House  was  an 
insurable  life  at  the  time  the  insurance  was  effected. 

Secondly,  Uiat  House  was  not  the  agent  of  the  plaintiff,  who,  there- 
fore, ought  not  lo  be  affected  by  misrepresentations,  if  any,  made  by 
him;  and  that  though  in  ordinary  cases  the  assured  might  be  bound  to 
furnish  all  the  information  required  by  the  office,  yet  here,  the  defend- 
ant's agent  having  solicited  the  insurance,  and  the  plaintiff  having  left 
it  to  him  to  make  all  the  necessary  inquiries,  the  office  had  taken  the 
task  of  inquiry  upon  themselves,  and  had  absolved  the  plaintiff  from 
the  duties  usually  imposed  upon  the  assured. 

Gaselee  J.  left  it  to  the  jury  to  say,  first.  Whether  at  the  time  of 
effecting  the  insurance  House  was  an  insurable  life;  secondly,  Whether 
there  had  been  a  concealment  of  any  circumstance  which  it  was  material 
for  the  office  to  know;  and,  thirdly.  Whether  Lye  had  acted  as  the 
agent  of  the  plaintiff,  or  of  the  office,  or  of  both. 

The  jury  jfound. 

That  House  was  an  insurable  life; 

That  there  was  no  concealment  of  any  material  circumstance;  and 

That  Lye  was  solely  the  agent  of  the  office;  and  gave  their  verdict 
for  the  plaintiff. 

Mereivether  Serjt.  obtained  a  rule  nisi  lo  set  aside  this  verdict  and 
enter  a  nonsuit  instead,  upon  the  grounds  urged  at  the  trial. 

He  relied  on  Lindenau  v.  Desborough,  8  B.  &  C.  5¥'6;  Maynard 
V.  Rhodes,  5  D.  &  R.  266;  Morrison  \.  Muspratt,  4  Bing.  60. 

Wilde  Serjt.  shewed  cause. 

Mereivether  contra. 

Best  C.  J.  No  longer  ago  than  when  the  case  of  Morrison  v.  Mus- 
pratt was  decided,  this  Court  held,  that  if  there  was  reference  to  a  man 
who  had  been  the  medical  attendant,  and  no  reference  to  the  person  who 
was  the  medical  attendant  of  the  life  insured  at  the  time  the  policy  was 
effected,  such  an  omission  to  refer  to  the  proper  person  would  vacate  the 
policy.  This  Court  granted  a  new  trial  in  that  cause,  in  consequence  of 
a  supposed  misdirection  of  Lord  Tenterden.  Lord  Tenterden  after- 
wards, in  Lindenau  v.  Desborough,  spoke  in  terms  of  approbation  of 
the  decision  of  this  Court,  and  in  effect  said,  that  he  considered  the 
decision  of  this  Court  as  the  rule  which  ought  to  guide  him  in  giv- 
ing his  direction  to  the  jury  in  that  particular  case.  How  is  that  case  of 
Morrison  v.  Muspratt  to  be  distinguished  from  the  present?  In  that 
case,  undoubted!}',  the  reference,  as  my  brother  JVilde  has  stated,  was 
made  by  the  assured;  in  this  case,  the  reference  made  is  not  by  the  as- 
S'lred,  but  by  the  person  whose  life  was  insured.  Then,  is  the  assured 
affected  by  any  misrepresentation  of  the  person  whose  life  is  insured? 
In  the  case  of  Maynard  v.  Rhodes,  that  very  point  was  decided  by  the 
Court  of  King's  Bench.  Colonel  Lyon,  the  life  insured  by  the  plaintiff, 
in  conformity  with  the  regulations  of  the  insurance  office,  attended  to 
give  the  usual  information  as  to  the  state  of  his  health,  and  in  the  result 
the  policy  was  effected.  Colonel  Lyon  concealed  or  misrepresented  a 
material  circumstance  touching  his  health.  The  learned  Judge  told  the 
jury,  if  they  were  satisfied  that  the  representation  made  by  Colonel 
Lyon  was  not  substantially  true  at  the  time  the  policy  was  effected,  the 
plaintiff  would  be  bound  by  the  consequences  of  such  misrepresentation, 
although  he  himself  was  not  privy  to  the  falsehood.     A  motion  was' 


5  Bingham,  503.  523 

made  for  a  new  trial.  The  judgment  is  given  by  Mr.  Justice  Bayley^ 
Mr.  Justice  Holroyd,  and  Mr.  Justice  Litiledale.  The  first  says,  "  I 
am  of  opinion  that  the  direction  of  the  Lord  Chief  Justice  to  the  jury- 
was  correct  in  point  of  law."  Mr.  Justice  Holroyd  says,  "  If  the  jury 
were  satisfied  that  the  representations  made  by  Colonel  Lyon  himself 
were  untrue,  it  can  make  no  difference  in  the  legal  result  whether  the 
policy  was  effected  for  his  benefit  or  not;  it  was  a  conditional  policy, 
and  the  party  for  whose  benefit  it  was  effected  must  stand  to  the  conse- 
quences." Mr.  Justice  Litiledale  expresses  himself  as  agreeing  with 
the  other  two  Judges. 

This  is  a  very  recent  decision  at  the  Court  of  King's  Bench  expressly 
on  this  point;  but  if  we  look  at  the  circumstances  of  the  present  case,  I 
think  we  may  decide  this  point  on  the  general  rule  of  law,  that  the  prin- 
cipal is  responsible  for  any  representations  made  by  his  agent  relating  to 
the  business  in  hand.  For,  has  not  the  plaintiff,  the  assured,  made  ^Ir. 
House  his  agent  for  the  purpose  of  this  insurance?  When  Mr.  Lye 
applies  to  the  plaintiff,  the  plaintiff  says,  I  can  give  no  account,  you 
must  go  and  enquire  who  was  INIr.  House's  medical  attendant.  And 
who  could  give  him  the  best  account?  to  whom  should  he  go  ?  who 
could  give  him  direct  and  satisfactory  information  on  the  subject  but 
Mr.  House?  Then,  the  assured  must  have  known  of  the  statement 
signed  by  Lye,  because  Lye  swears  that  he  shewed  him  tiie  paper,  and 
that  the  other  said,  I  dare  say  it  is  all  correct.  He  either  did  know  it 
or  might  have  known  it,  which,  as  far  as  regards  his  responsibility,  is 
the  same  thing  as  if  he  did  know  it.  He  knew  that  Mr.  House  had 
been  asked  the  question — "to  what  medical  practitioner  do  you  refer 
the  directors  of  the  office  as  most  competent  to  give  evidence  respecting 
your  present  and  general  state  of  health  and  constitution,  and  your  habits 
of  life," — and  that  he  had  answered,  "I  refer  to  ]\Ir.  Vicary  of  War- 
minster." IJy  suffering  that  paper  to  be  handed  in,  he  adopts  that  refer- 
ence, and  makes  Mr.  House  his  agent  for  the  purpose  of  making  the 
reference. 

Is  that  a  true  and  proper  reference  ?  Mr.  Vicary  of  Warminster  had 
never  been  House's  medical  attendant.  But  a  medical  man  at  Bath  had 
attended  him  for  some  years,  and  could  tell  not  only  whether  there  was 
any  incipient  disease,  but  whether  there  were  any  habits  which  have  a 
tendency  to  produce  disease. 

Without  discussing  the  f[Ucslion  whether  habits  of  inveterate  drunken- 
ness have  a  tendency  to  produce  disease  or  not,  we  may  stop  short  here, 
and  say,  you  have  not  referred  to  the  medical  attendant  as  you  were 
required  to  do.  The  first  count  in  the  declaration  states  the  policy  of 
insurance:  it  then  states  the  conditions,  according  to  a  clause  by  which 
it  is  "provided  that  this  policy  and  insurance  hereby  effected  shall  at 
all  times  and  under  all  circumstances  be  subject  to  such  conditions  and 
stipulations  as  are  contained  in  the  printeil  conditions  of  life-assurance 
indorsed  hereon,  in  the  same  manner  as  if  the  same  were  actually  re- 
peated in  the  body  of  the  policy,  and  adapted  to  this  prjscnt  case."  One 
of  those  conflitions  is,  that  the  names  an(l  residences  of  two  gentlemen 
are  to  be  referred  to  respecting  the  present  and  general  state  of  the  life 
of  the  insured — one  to  be  the  usual  medical  attendant  of  the  party. 
The  declaration  in  the  cause  then  gf)eH  on  to  state,  that  all  the  condi- 
tions of  the  policy  had  been  complied  with,  and,  consequently,  that 
there  had  been  a  reference  to  ihe  proper  medical  man.      Without  proof 


524  EvEUErr  v.  Di:SDOROUciii.  E.  T.  1829. 

of  that,  (lie  plaiiitifl' could  not  recover  in  this  action;  and  it  is  not  an  un- 
necessary allegation,  because  the  declaration,  in  my  ojjinion,  would  have 
been  bad  without  it,  lor  it  would  not  truly  have  represented  the  contract 
between  the  parties.  That  contract  is  not  confined  to  what  is  contained 
in  the  body  of  the  policy,  but  embraces  the  conditions  indorsed  on  it, 
and  embraces  the  representations  required  by  those  conditions.  It  was 
nl)>olutely  necessary  to  set  out  in  the  declaration  that  these  conditions 
had  been  complied  with.  So  far  from  that  being  proved,  undoubtedly 
it  was  disproved.  I  am  of  opinion,  on  this  short  ground,  that  a  nonsuit 
ought  to  be  entered. 

1'ark  J.  In  all  actions  on  life-assurance,  I  am  quite  clear  that  every 
regard  ought  to  be  paid  to  the  assured,  because,  in  general,  it  is  a  pro- 
vision for  a  family,  or  it  is  a  provision  for  a  bona  fide  debt,  as  I  have  no 
doubt  it  was  in  this  case;  for  there  is  not  the  least  imputation  on  the 
plaintiff  in  the  cause;  but,  while  one  wishes  to  give  every  latitude  and 
every  indulgence  to  plaintiffs  under  such  circumstances,  it  is  absolutely 
necessary  that  in  every  case  of  this  description,  there  should  be  the 
purest  good  faith  between  the  parties,  and  the  most  accurate  representa- 
tion of  all  material  circumstances.  Looking  at  this  case  in  that  point 
of  view,  I  think  there  is  nothing  at  all  in  the  point  that  has  been  made. 
The  case  is  merely  this,  that  Mr.  House's  life  being  the  subject  of  in- 
surance, the  plaintifl',  who  was  to  be  benefited  by  that  insurance,  refers 
the  agent  of  the  office  to  make  such  enquiries  as  he  can;  the  agent  neces- 
sarily goes  to  the  party  who  was  to  be  the  life  insured.  Was  it  not,  then, 
of  course,  that  the  plaintiff,  who  made  the  reference  to  this  very  man, 
because  he  was  the  person  who  could  give  the  best  information,  shoukl 
be  bound  by  the  representations  House  made  concerning  himself?  And 
what  does  he  say  of  himself?  He  is  asked,  to  refer  to  his  usual  medical 
attendant.  He  says,  my  usual  medical  attendant  is  Mr.  Vicary  of  War- 
minster. But  was  there  a  word  of  truth  in  Mr.  Vicary  being  his  usual 
attendant?  Mr.  Vicary  was  examined,  and  it  appeared  he  had  never 
been  his  medical  attendant.  No  matter,  then,  whether  Dr.  Harvey 
were  a  good  medical  attendant  or  not — he  wsis  the  person  actually  at- 
tending him,  and  his  name  was  never  mentioned.  Then,  is  the  plain- 
tiir,  wlio  effects  the  insurance,  to  be  bound  by  this?  It  seems  to  me 
that  Maynard  \.  Rhodes  is  exactl}'  in  point.  There  is  no  distinction 
^vhatever  between  that  case  and  the  present,  liccause  there,  the  assured 
was  as  ignorant  of  any  thing  like  fraud,  and  as  Uqh  from  suspicion,  as  the 
plaintiff  here;  yet,  it  was  held,  he  was  bound  by  the  representations  of 
tlie  life  insured. 

But  it  is  said,  this  misstatement  is  not  material,  or  not  so  material  as 
the  misstatement  in  the  case  of  Maynard  and  Rhodes.  I  do  not  agree 
in  that.  It  is  most  material  that  the  surgeon  who  has  been  in  attendance 
on  the  life  insured,  if  such  a  one  there  be,  should  be  referred  to.  If  he 
never  had  had  a  surgeon  attending  him,  he  might  have  said  so;  but  if  he 
had  one,  it  was  material  that  he  should  be  referred  to,  and  the  plauitiff 
knew  it  was  material,  otherwise  he  would  not  have  declared  in  the  man- 
ner he  has  done  in  this  case,  for  he  avers  in  his  declaration  the  exact 
performance  of  this  condition.  Instead  of  alleging  that  the  defendant 
had  dispensed  with  that  information,  as,  perhaps,  he  might  have  alleged, 
(if  he  could  have  proved  it,)  according  to  the  principle  recognized  in 
J(mes  V.  Barkley,  Dougl.  6S4,  he  says,  I  have  performed  all  the  con- 
ditions hereinbefore  recited.  But  he  had  not  done  so,  for  he  had  not 
referred  to  the  usual  nicdical   attendant  of  the  life  insured. 


5  Bingham,  503.  525 

BiTRROUGH  J.  Here  there  is  beyond  all  question  a  misrepresentation 
of  a  very  material  fact:  of  the  name  of  the  person  who  attended  the  life 
insured.  There  was  another  person  who  had  been  used  to  attend  him. 
Beyond  all  doubt,  that  is  a  misrepresentation.  At  the  bottom  of  the 
policy  there  is  this  phrase:  "A  declaration  as  to  all  the  above  points 
will  be  considered  as  the  basis  of  the  contract  between  the  assured  and 
the  company.  If  such  declaration  be  not  in  all  respects  true,  the  policy 
will  become  void."  One  declaration  is  of  ''the  name  and  place  of 
residence  of  two  gentlemen  to  be  referred  to  respecting  the  present  and 
generalstate  of  health  of  the  life  to  be  insured — one  to  be  the  usual  medical 
attendant  of  the  party."  Has  the  plaintiflf  complied  with  that?  so  far 
from  it,  there  has  been  a  misrepresentation  of  the  fact  by  the  life  insured. 
Vicary  was  not  his  medical  attendant.  There  was  another  person  who 
had  attended,  and  who  would  have  disclosed  habitual  intoxication.  This 
is  not  complying  with  the  terms  of  the  policy,  and  I  think  there  ought 
to  be  a  nonsuit. 

Gaselee  J.  According  to  the  terms  of  this  policy,  it  is  requisite 
that  the  names  and  residences  of  two  gentlemen  should  be  referred  to 
respecting  the  state  of  the  life  assured — one  the  usual  medical  attendant 
of  the  party.  Now,  who  is  the  person  who  can  best  disclose  the  name 
of  such  attendant  ?  and  does  it  not  ex  vi  termini,  almost  import  that  the 
life  assured  himself  shall  be  applied  to  1o  know  who  is  his  medical  atten- 
dant ?  JMr.  House,  the  life  insured,  was  the  person  applied  to  here,  and 
he  has  given  a  misrepresentation  of  that  fact. 

But  it  has  been  said,  he  was  not  the  agent  of  the  plaintiff.  The 
plaintiff  said  to  Lye,  Do  you  make  the  necessary  enquiries,  and  I  will 
sign  the  paper.  Now,  it  appears  to  me  when  that  is  coupled  with  what 
passed  afterwards,  viz.  Lye's  coming  and  beginning  to  read  over  the  de- 
claration, and  to  state  what  was  in  it,  when  the  plaintiff  cut  him  short, 
and  said,  he  took  it  for  granted  it  was  right,  that  it  does  constitute  House 
the  agent  of  the  plaintiff,  and  that  he  is  bound  by  the  misrepresentation 
of  such  agent. 

That,  therefore,  appears  to  me  to  be  a  sufficient  ground  on  which  a 
nonsuit  ought  to  be  entered  in  this  case.  I  agree  with  my  brother  fFi/de, 
that  it  was  competent  to  the  parties  to  have  dispensed  with  this,  or  with 
any  other  of  the  conditions  they  thought  fit.  liut  suppose  they  had, 
should  it  not  then,  on  the  i)rinciple  laid  down  in  the  case  of  Jones  v. 
Barldcy,  referring  to  Kiitf^slon  v.  Pearson,  have  been  said,  ''  JMy  de- 
claration consisted  of  such  and  such  particulars,  which  were  required  by 
the  conditions,  and  I  was  ready  to  have  declared  and  to  have  made  it 
conformnble  to  the  policy,  but  the  office  did  not  iiisist  on  it,  they  dis- 
pensed with  it,  and  they  discharged  me  altogether  from  making  it;" 
that  is  the  allegation  in  Jones  v.  liurkley,  where  the  party  said  he  had 
made  and  executed  some,  and  was  ready  and  offered  to  do  the  rest,  but 
the  other  jjarty  dispensed  with  tiie  whole.  Then  the  question  would 
have  been,  have  they  or  not  discharged  them;  I  do  notthink  my  brother 
IVilde's  point  arises  upon  the  record,  or  that  it  would  have  been  comj)C- 
tenttogive  in  evidence,  that  they  bad  disiienscd  with  this  condition,  re- 
quiring the  name  of  the  usual  medical  attendant.  On  this  ground,  I  am 
of  opinion  there  should  be  a  nonsuit. 

Rule  absolute. 


526  Ellis  v.  Schmceck.  E.  T.  1829. 


ELLIS  V.  SCHMCECK  and  THOMAS.— p.  52L 

The  defendants  had  purchased  the  scrip  of  a  mining  company  originated  in  fraud, 
and  had  attended  one  meeting  of  the  company;  but  they  never  signed  the  part- 
nership deed,  were  innocent  of  the  fraud,  and  transferred  their  scrip  before  the 
plaintiff  commenced  an  action  for  goods  furnished  to  the  company  after  defen- 
dants had  purchased  their  scrip : 

Held,  they  were  liable. 

Action  for  goods  sold  and  delivered.  At  the  trial  before  BestC.  J, 
London  sittings  after  Trinity  term  1S27,  it  appeared  that  the  goods 
were  furnished  for  tlie  Cornwall  and  Devonshire  mining  company.  The 
defendants  had  received  from  the  secretary  of  the  company,  certificates 
of  their  having  paid  a  deposit  upon  the  amount  of  their  purchase  money 
for  certain  sliares  in  the  company,  and  had  received  papers  called  the 
scrip  of  the  company,  but  they  had  not  signed  the  partnership  deed,  and 
had  transferred  their  scrip  before  the  action  was  commenced. 

Both  defendants  were  present  at  a  meeting  of  the  company  in  August 
1825,  but  the  defendant  Thomas  had  not  purchased  his  scrip  until  after 
a  portion  of  the  goods,  for  the  price  of  which  this  action  was  brought, 
had  been  delivered.  It  was  urged,  that  as  the  defendants  had  parted 
wit!)  their  scrip,  and  had  never  sigtaed  the  partnership  deed,  this  action 
did  not  lie  against  them.  However,  a  verdict  was  given  for  the  plain- 
tiflf,  and  the  jury  found  specially,  that  the  company  originated  in  fraud, 
but  that  neither  the  plaintiffnor  the  defendants  were  parties  to  the  fraud. 

JVilde  Serjt.  moved  to  set  aside  this  verdict,  and  enter  a  nonsuit  in- 
stead, on  the  grounds  urged  at  the  trial,  or  to  reduce  the  damages  to  the 
amount  of  the  goods  furnished  subsequently  to  Thomas's  purchasing 
scrip.      A  rule  nisi  was  granted,  and 

Taddy  and  Spankie  Serjts.  shewed  cause,  and  cited  Perring  v. 
Hone,  4  Bingh.  28;  Vice  v.  Lady  Anson,  7  B.  &  C.  409. 

Wilde  and  Merewether  Serjts.  contra,  referred  to  Nockels  v.  Crosby^ 
3  B.  &.  C.  S14;  Harrington  v.  Fry,  2  Bingh.  179. 

Cur.  adv.  vult- 

As  several  cases  of  a  similar  kind  were  depending  in  the  court  of 
King's  Bench,  the  decision  of  the  court  here  was  postponed;  and  now, 
none  of  those  cases  having  proceeded  to  judgment, 

Park  .1.  said, — We  have  looked  into  this  case,  which  was  argued  be- 
fore my  brothers  Burroiigh,  Gaselee,  and  myself,  and  are  satisfied  that 
the  plaintiff  must  have  his  judgment.  We  had  thought  that  a  case  which 
is  depending  in  the  Court  of  the  King's  Bencli  might  have  thrown  light 
on  the  subject,  but  we  are  of  opinion  now  that  there  is  no  case  which 
immediately  touches  this.  I  shall  not  go  into  it  at  any  length.  We 
think  the  jury  have  by  their  verdict  gone  very  far  to  conclude  the  ques- 
tion; because  they  find  that  the  defendants  form  part  of  a  company  which 
was  founded  indeed  in  fraud,  but  they  acquit  both  the  defendants  and  the 
plaintiff  of  any  cognizance  of  that  fraud.  The  action  was  for  goods  sold 
and  delivered  to  a  very  considerable  amount,  for  furnishing  the  building 
in  which  the  business  of  this  company  was  to  be  carried  on.  We  think 
that,  under  all  the  circumstances  of  this  case,  it  approaches  very  nearly, 
if  not  quite,  to  the  case  of  Sir  J.  Perring  and  Others  v.  Hone.  In 
that  case  Sir  John   Perring  had  entered  his  name  in  a  book  with  several 


5  Bingham,  521.  527 

others,  for  a  projected  joint  stock  company,  he  received  scrip  receipts, 
but  he  sold  them  before  the  deed  was  executed  for  the  formation  of  the 
company;  and  he  never  did  execute  that  deed;  but  notwithstanding  that, 
inasmuch  as  he  had  attended  meetings,  and  had  received  monies,  and  so 
forth,  the  Court  was  of  opinion,  upon  consideration,  that  he  was  still 
liable.  The  case  of  Viscount  and  Lady  Anson,  we  think,  does  not 
touch  that,  because  in  the  case  of  that  lady  she  had  certainly  received  the 
scrip  receipts,  and  she  had  perhaps  in  loose  conversations  in  her  own 
family  talked  of  being  a  subscriber  to  the  company,  though  it  did  not 
appear  that  she  held  herself  out  to  the  world  in  any  respect  as  a  partner; 
and,  therefore,  that  case  does  not  seem  to  us  to  apply  to  the  present.  In 
the  present  case  the  defendants  attended  all  the  meetings,  and  though 
they  did  not  in  fact  sign  the  deed,  that  was  no  more  than  was  urged  in 
the  case  of  Sir  John  Perring.  Under  all  the  circumstances  of  the  case, 
we  think  the  plaintiff  is  entitled  to  keep  the  verdict. 

Judgment  for  the  plaintiff  for  234/.  the  value 
of  the  goods  furnished  after  the  defendants 
were  concerned  with  the  company. 


(IN  THE  EXCHEQUER  CHAMBER.) 

LLOYD  and  Others  v.  SIGOURNEY.— p.  525. 

A  bill  of  exchange,  drawn  in  America  on  a  house  in  London,  payable  to  order, 
•was  indorsed  by  the  payee  generally  to  A. ;  and  by  him  in  these  words, "  Pay  to 
B.  or  his  order  for  my  use."  B.  applied  to  his  bankers  to  discount  the  bill,  and 
they,  without  making  any  enquiry,  did  so,  and  applied  the  proceeds  to  the  use 
of  B.:  Held,  that  the  indorsement  was  restrictive;  that  the  property  in  the  bill 
remained  in  A.;  and  that  he  was  entitled  to  recover  the  amouncfrom  the  bank- 
ers. 

Error  from  the  court  of  King's  Bench,  in  an  action  of  assumpsit  for 
money  had  and  received,  in  which  judgment  had  been  given  for  Sigour- 
ney  the  plaintiff  below,  on  the  following  special  verdict: — 

In  the  month  of  July,  Captain  Attwood,  who  commanded  a  vessel  be- 
longing to  the  plaintiff  below,  took  in  pnymcrit  of  a  cargo  of  flour,  the 
property  of  the  plaintifl',  which  he  sold  at  RioJanicro,  a  bill  of  exchange 
for  31G4/.  115^.  8</.,  drawn  in  a  set  of  three,  by  JMarch,  Scaly,  Walker, 
and  Co.,  of  that  place,  on  March,  Sealy,  and  Co.  of  London.  This  bill 
was  payable  to  the  order  of  Messrs.  Hendricks,  Wicrss,  and  Co.,  who 
indorsed  it  to  Captain  Attwood.  The  following  is  a  copy  of  the  third 
part  of  the  bill: — 

<'  Rio  de  Janicro,  12lh  July  1825. 
<'For  31  Gl/.  11 5.  8</. 

"At  sixty  days  sight,  pay  this  third  of  exchange,  first  and  second  not 
paid,  to  the  order  of  Niessrs.  Hendricks,  Wicrss,  and  Co.,  three  thousand 
one  hundred  and  sixty  four  pounds,  eleven  shillings,  and  eight  pence, 
value  of  the  bame,  which  place  to  account,  as  per  advice  from 

"  March,  Sealy,  Walker,  and  Co." 

This  was  indorsed  by  the  payees  to  A.  Attwood:  by  Attwood  to  the 
plaintiff  below:  by  the  latter  in  the  following  words: — 


.528  Lloyd  v.  Sigourney.  E.  T.  1829. 

"  Pay  to  Samuel  Williams,  Esq.  of  London,  or  his  order,  for  my  use;" 

And  by  S.  Williams  to  the  del'cndants  below. 

Attwood  sent  the  lirst  of  the  set  to  the  correspondent  of  the  plaintifi 
below,  Mr,  Samuel  Williams  of  London,  who  was  an  American  agent, 
and  factor  for  merchants  and  planters,  carrying  on  such  business  to  a  great 
extent,  enclosed  in  the  following  letter  :  —  "Sir, — I  herewith  have  the 
lionour  to  enclose  you  the  hrst  of  exchange  for  3161/.  11.?.  Sd.  sterling, 
at  sixty  days  sight,  on  Messrs.  March,  Scaly,  and  Co.,   in  London,  in 
favour  of  myself,  it  being  the  proceeds  of  a  cargo  of  flour,  in  brig  Swift- 
sure,  belonging  to  Henry  Sigourney,  Esq.,  Boston,  America,  which  you 
will  please  to  present  for  acceptance,  and  keep  at  the  disposal  of    he  se- 
cond or  third."    liut  he  did  not  indorse  the  bill.    Williams  received  the 
letter  and  billon  the  2Gth  September  1S25,  and  procured  the  acceptance 
of  the  bill  in  due  course.   The  third  of  the  set  was  remitted  to  the  plain- 
tiff below;  and  he,  having  indorsed  it  as  aforesaid,  "  Pay  to  Mr.  Samuel 
Williams  or  order,  for  my  use,"  remitted  it  to  Williams  in  the  following 
letter  of  the  17th  September  1S25: — "Captain  Amaziah  Attwood,  of 
my  brigSwiftsure,  arrived  here  yesterday  from  Rio  Janiero.   He  informs 
me,  that  he  left  a  letter  directed  to  you,  to  be  forwarded  to  3'ou  by  the 
next  English  mail,   containing  the  first  of  March,  Sealy,  Walker,  and 
Co. 's  draft  on  March,  Sealy,  and  Co.,  London,  dated  12th  July,  at  sixty 
days  sight,  for  3164/.  lis.  Sd.  sterling,  in  favour  of  Messrs.  Hendricks, 
Wierss,  and  Co.,  and  by  them  indorsed  to  said  A.  Attwood.     He  thinks 
he  did  not  indorse  the  draft;  and  if  received,  it  can  only  be  accepted. 
Enclosed  you  have  third  bill  of  the  set,  indorsed  to  me  by  Captain  Att- 
wood, and  to  yourself  by  me.      I  presume  that  if  the  other  should  have 
been  previously  received  and  accepted,  a  receipt  on  the  one  now  trans- 
mitted would  be  accepted  at  maturity.      Have  the  goodness,  when  you 
advise  the  receipt,  which  I  trust  will  be  as  soon  as  possible,  of  the  present, 
to  inform  me  the  standing  of  the  acceptors.     Henry  Sigourney."     The 
letter  and  bill  were  received  by  Williams  on  the  26th  October  1825. 
The  defendants  below  had  no  notice  of  the  before-mentioned  letters  of 
Captain  Attwood  and  of  the  plaintiff  below.   Williams  slopped  payment 
on  the  24th  October  1S25,  and  a  docket  was  struck  against  him  on  the 
25th  of  the  same  month,  upon  which  a  commission,  dated  the  27th  of  the 
same  month,  was  issued,  and  he  was  declared  a  bankrupt  immediately 
afterwards.      At  the  time  Williams  received  the  bill  in  question,  as  well 
as  at  the  time  of  his  bankruptcy,  the  balance  of  account  was  in  favour  of 
the  plaintiff  below  to  the  amount  of  upwards  of  3000/.,  exclusive  of  the 
before-stated  bill.      On  the  morning  of  the  22d  October,  when  the  dis- 
count hereinafter  mentioned  was  made,  the  balance  in  favour  of  Wil- 
liams with  the  defendants  below  was  37S4/.  10s.  lOd.     About  eleven 
o'clock  on  that  day  Williams  indorsed  the  bill  in  question,  with  others, 
amounting  in  the  whole  to  7081/.  17.9.  9d.,  to  the  defendants  below, 
who  were  his  bankers,  and  in  the  habit  of  discounting  for  him  very 
largely,  and  the  said  bills  were  bona  fide  discounted  for  him,  and  credit 
given  to  him  for  the  amount,  less  the  discount ;  and  subsequently,  viz., 
at  the  clearing  house  about  five  o'clock  in  the  evening  of  that  day,  the 
defendants  below  paid  Williams's  acceptances  due  that  day  to  the  num- 
ber of  thirty-two,  and  three  drafts,  amounting  to  10,683/.  18*.  6d.   The 
bill  in  question  was  honoured  at  maturity,  and  the  amount  received  by 
the  defendants  below  on  the  28th  November  1825. 

Patteson  for  the  defendants  below,  referred  to  More  v.  Manning, 


5  Bingham,  525.  529 

Com.  Sll;  *icheson  v.  Fountain,  1  Str.  557;  Ediex.  East  India  Corn- 
pany,  2  Burr.  1216;  Snee  v.  Frescott,  1  Atk.  247;  Evans  v.  Cravi- 
lington,  Carth.  5.  2  Vent.  307.  Skin.  264.  1  Show.  4;  Showe7',  p.  4.; 
Ventris,  p.  SOS;  Treutlel  \.  Barandon,  S  Taunt.  100;  Robarts  y. 
Kensington,  4  Taunt.  30. 

F.  Pollock  for  the  plaintiff  below,  cited  Edie  v.  The  East  India  Com- 
pany, 2  Burr.  1227. 

Best  C.  J.  We  are  all  of  opinion,  that  the  judgment  of  the  Court  of 
King's  Bench  must  be  affirmed.  Whoever  reads  the  indorsement  on 
this  bill  of  exchange  must  perceive  that  its  operation  is  limited,  and  that 
the  object  of  the  indorser  was  to  prevent  the  money  received  in  respect 
of  the  bill  from  being  applied  to  the  use  of  any  other  person  than  him- 
self: to  whomsoever  the  money  might  be  paid,  it  would  be  paid  in  trust 
for  the  indorser;  and  into  whose  hands  soever  the  bill  travelled,  it  car- 
ried that  trust  on  the  face  of  it.  And  we  see  no  inconvenience  to  com- 
mercial interests  from  such  a  limitation  of  the  effect  of  the  indorsement 
so  expressed;  the  only  result  will  be,  to  make  parties  open  their  eyes 
and  read  before  they  discount. 

It  is  impossible  to  read  this  indorsement  without  seeing  that  some  en- 
quiry is  necessary;  for  if  such  be  not  the  use  of  the  words  introduced, 
they  are  of  no  use.  But  if  a  use  can  be  found  for  them,  the  Courts  must 
apply  them  in  tlie  way  in  which  they  were  intended  to  operate. 

The  indorser  has  added  tlic  words  or  order,  to  the  name  of  the  in- 
dorsee, because,  if  he  had  not  done  so,  the  indorsee  must  have  attended 
in  person  to  obtain  payment  of  tlie  bill,  and  the  short  way  to  obviate 
that  inconvenience  was  to  introduce  the  words  or  order.  But  he  still 
intended  that  the  person  ordered  by  the  indorsee  to  receive  the  amount 
should  receive  it  to  the  use  of  him,  the  indorser. 

But  the  defendants  below,  instead  of  paying  the  amount  of  the  bill  for 
tlie  use  of  Sigourney,  the  indorser,  liave  discounted  it  for  the  use  of 
Williams,  the  indorsee.  We  are  all,  therefore,  of  opinion  that  the  judg- 
ment of  the  Court  of  King's  Bench  must  be 

Affirmed. 


JONES  V.  BRIGHT  and  Others.— p.  533. 

The  plaintifT  purchased  from  the  warehouse  of  the  defendant,  the  manufacturer, 
<;f)ppcr  for  sheathing  asliip.  The  defendant,  who  knew  tlic  object  for  which 
the  copper  was  wanted,  said,  "I  will  supply  you  well." 

■  lie  copjier,  in  consequence  of  some  intrinsic  defect,  the  cause  of  which  was  not 
proved,  havint;  lasted  only  four  months,  instead  of  four  years,  the  average  du- 
ration of  such  an  article, 

Held,  in  an  action  on  the  case  in  the  nature  of  deceit,  that  the  plaintiff  was 
entitled  to  damages. 

The  tenth  count  of  the  declaration  stated,  that  the  plaintiff  on,  &c., 
at,  &,c.,  at  the  special  instance  and  request  of  the  defendants,  bargained 
\vith  the  defendants  to  buy  of  Ihcin,  and  the  (lefcndants  then  and  there 
agreed  to  soil  to  tlie  plaintiff  divers,  to  wit  1000,  sheets  of  copper,  for 
the  purpose  of  sheathing  the  bottom  of  a  certain  barque  or  vessel  called 
tiic  Isabella;  and  the  defendants  by  then  and  there  falsely  and  fraudulent- 
ly warranting  the  said  last-mentioned  sheets  of  copper,  which  had  been 
made  and  manufactured  by  the  defendants,  to  be  reasonably  fit  and  pro- 

voL.  XV.  67 


530  Jones  v.  Bright.  E.  T.  1829. 

per  lor  the  purpose  last  aforesaid,  then  and  there  sold  the  last-mentioned 
sheets  of  copper  to  the  plahitiilat  and  for  a  large  sum  of  money,  to  wit, 
tire  sum  of  313/,  3s.,  which  was  afterwards  paid  by  the  plaintiff  to  the 
defendants  for  the  same:  whereas,  in  truth  and  in  fact,  the  last-mention- 
ed sheets  of  copper  were  not,  at  the  said  time  of  the  said  warranty  and 
sale  thereof  as  aforesaid,  reasonably  fit  or  proper  for  the  purpose  last 
aforesaid;  but,  on  the  contrary  thereof,  the  said  last-mentioned  sheets  of 
copper  were  at  that  time  of  an  inferior  quality,  and  wholly  unfit  and 
improper  for  the  purpose  last  aforesaid;  whereby  the  said  last-mentioned 
sheets  of  copper,  afterwards,  to  wit,  on,  &c.,  at,  &c.,  became  and  were 
greatly  corroded,  injured,  and  destroyed,  and  of  little  or  no  use  or  value 
to  the  plaintiff;  and  so  the  defendants,  by  means  of  the  said  last-men- 
tioned premises,  on,  &c.,  at,  &c.,  falsely  and  fraudulently  deceived  the 
plaintiff  on  the  sale  of  the  said  last-mentioned  sheets  of  copper  as  afore- 
said.    Then  followed  an  allegation  of  special  damage. 

The  eleventh  count  differed  from  the  preceding  only  in  omitting  the 
name  of  the  vessel,  and  the  allegation  that  the  copper  had  been  made 
and  manufactured  by  the  defendants. 

At  the  trial  before  Best  C.  J.,  London  sittings  after  Michaelmas  term, 
the  case  proved  was  as  follows: — 

The  plaintiff  was  a  ship-owner;  the  defendants  manufacturers  and 
venders  of  copper  for  various  purposes. 

Fisher,  a  mutual  acquaintance  of  the  parties,  introduced  them  to  each 
other,  saying  to  the  defendants,  "Mr.  Jones  is  in  want  of  copper  for 
sheathing  a  vessel,  and  I  have  pleasure  in  recommending  him  to  you, 
knowing  you  will  sell  him  a  good  article;"  one  of  the  defendants  answer- 
ed, "Your  friend  may  depend  on  it,  we  will  supply  him  well." 

Copper  was  lying  in  the  defendants'  warehouse,  in  sheets  of  various 
size,  thickness,  and  weight:  the  plaintiff's  shipwright  selected  what  he 
thought  fit,  and  afterwards  applied  it  to  the  plaintiff's  ship,  observing 
nothing  amiss.  The  invoice  described  the  article  sold  as  "Copper  for 
the  ship  Isabella."  The  plaintiff  paid  the  market-price'  as  for  copper  of 
the  best  quality;  and  his  ship  proceeded  on  a  voyage  to  Sierra  Leone. 
The  copper,  however,  instead  of  lasting  four  or  five  years,  the  usual  du- 
ration of  copper  employed  in  sheathing  vessels,  was,  at  the  end  of  four 
or  five  months,  greatly  corroded  in  patches  of  holes,  and  unfit  for  fur- 
ther service. 

Scientific  men,  called  on  the  part  of  the  plaintiff,  ascribed  the  failure 
to  an  oversight  or  casualty  in  the  manufacture,  whereby  the  copper 
might  have  imbibed  more  oxygen  than  it  ought  to  contain;  but  all  im- 
putation of  fraud  on  the  defendants  was  disclaimed  by  the  plaintiff.  The 
defendants'  witnesses  accounted  for  the  corrosion  from  the  singular  in- 
veteracy of  the  barnacles  in  the  river  at  Sierra  Leone,  where  the  ship  ' 
lay  for  some  time.  They  stated  that  the  quality  of  copper  might  always 
be  known  by  its  appearance  and  malleability;  and  that  if  there  had  been 
any  defect  in  that  sold  to  the  plaintiff,  his  shipwright  must  have  discov- 
ered it  while  in  the  act  of  sheathing  the  vessel. 

The  Chief  Justice  left  it  to  the  jury  to  determine  whether  the  decay 
in  the  copper  was  occasioned  by  intrinsic  defect  or  external  accident; 
and  if  it  arose  from  intrinsic  defect,  whether  such  defect  were  occasioned 
in  the  process  of  manufacture. 

The  jury  found  that  the  decay  was  occasioned  by  some  intrinsic  defect 
in  the  quality  of  the  copper;  but  that  there  was  no  satisfactory  evidence 


5  Bingham,  533.  631 

to  shew  what  was  the  cause  of  that  defect.  A  verdict  was  thereupon 
entered  for  the  plaintiff,  subject  to  an  enquiry  by  an  arbitrator  as  to  the 
amount  of  damages, 

Ludlow  Serjt.  obtained  a  rule  nisi  to  set  aside  the  verdict  and  enter  a 
nonsuit,  on  the  ground,  that  without  an  express  warranty  or  proof  of 
fraud,  the  defendants  were  not  responsible  for  the  quality  of  the  article 
they  sold. 

JVilde  and  Russell  Serjts.  shewed  cause,  and  cited  3  Bl.  Com.  161; 
Laing  v.  Fidgeon,  6  Taunt.  lOS;  Fisher  v.  Samuda,  1  Campb.  190; 
Gardiner  v^  Gray,  4  Campb.  144;  Okellv.  Smith,  1  Stark.  108;  Bluett 
V,  Osborne^  1  Stark.  384;  Pasleij  v.  Freeman,  3  T.  R.  57;  Teats  v.  Phuy 
2  Marsh.  141;  Bridge  v.  lVai}i,  I  Stark.  504;  Prosser  v.  Hooper y  1  B. 
M.  106;  Chandelorv.  Lopus,  Cro.  Jac.  4;  Parkinsony.  Lee,  2  East,  314; 
Gray  v.  Cox,  4  B.  &  C.  lOS. 

Ludloxv  Serjt.  contra, referred  to  Co.  Lit.  102  a.;  JVilliamsonv.  Alliso7iy 

2  East,  446;  1  Fitz.  N.  B.  9  ;  Statham's  Abr.;  Noy's  Maxims;  Wood's 

Instit.;  Roll.  Abr.  Act.  on  Case,  p.  90.  pi.  1,  2,  3,  4;  Weallv.  King,  12 

East,  452.  r-         J         u 

'  Cur.  adv.  vult. 

Best  C.  J.  It  is  the  duty  of  the  Court,  in  administering  the  law,  to 
lay  down  rules  calculated  to  prevent  fraud;  to  protect  persons  who  are 
necessarily  ignorant  of  the  qualities  of  a  commodity  they  purchase;  and 
to  make  it  the  interest  of  manufacturers  and  those  who  sell,  to  furnish 
the  best  article  that  can  be  supplied.  The  Court  must  decide  with  a 
view  to  such  rules,  although,  upon  the  present  occasion,  no  fraud  has 
been  practised  by  the  parties  calling  for  decision.  This  is  an  action 
against  the  defendants,  to  recover  damages  for  the  insufficiency  of  cer- 
tain copper  which  they  furnished  for  a  particular  purpose.  It  has  been 
asserted  that  the  invoice  is  the  only  evidence  of  such  a  contract,  and 
that  the  defendants  ought  not  to  be  bound  by  a  loose  conversation  at  the 
time  of  the  sale.  An  invoice,  however,  is  frequently  not  sent  till  long 
after  the  contract  is  completed,  and  is  altogether  unlike  a  broker's  note 
which  does  contain  the  contract  between  the  parties;  but  if  we  look  at 
the  invoice  alone,  we  sec  in  the  present  case  that  the  copper  was  ex- 
pressly for  the  ship  Isabella.  However,  I  do  not  narrow  my  judgment 
to  that,  but  think  on  the  authority  of  a  case  not  cited  at  the  bar,  Kain 
V.  Old,  2  B.  &  C.  03  1,  that  "  where  the  whole  matter  passes  in  parol, 
all  that  passes  may  sometimes  bo  taken  together  as  forming  parcel  of 
the  contract,  thougli  not  always,  because  matter  talked  of  at  the  com- 
mencement of  a  bargain  may  ije  cxchulrMl  by  the  language  used  at  its 
termination."     In  that  doctrine  I  entirely  concur. 

Whatever,  then,  was  not  previous  discussion,  but  formed  part  of  the 
contract,  may  be  taken  into  consideration.  In  a  contract  of  this  kind, 
it  is  not  necessary  that  the  seller  should  say,  **  I  warrant;"  it  is  enough 
if  he  says  that  the  article  which  ho  sells  is  fit  for  a  parti.nilar  purpose. 
Here,  when  Fisher,  a  mutual  nrf|uaintance  of  the  parties,  introduced 
thorn  to  each  other,  he  said,  "  Mr.  Jones  is  in  want  of  copj)cr  for 
sheathing  a  vessel;"  and  one  of  the  defondants  answered,  **  We  will 
supply  him  wril."  As  there  was  no  suhscriuent  communication,  that 
constituted  a  contract,  and  amounted  to  a  warranty- 

But  I  wish  to  put  the  case  on  a  broatl  principle: — If  a  man  sells  an 
article,  he  thereby  warrants  that  it  is  merchantable, — that  it  is  fit  for 
some  purpose.     This  was  established  in  Laing  v.  Fiifgron.      If  he  sells 


.^32  Jones  v.  Bright.  E.  T.  1829. 

it  for  a  particular  purpose,  lie  thereby  warrants  it  fit  for  that  purpose; 
and  no  case  has  decided  otherwise,  although  there  are,  doubtless,  some 
dicta  to  the  contrary.  Reference  has  been  made  to  cases  on  warranties 
of  horses:  but  there  is  a  great  difference  between  contracts  for  horses 
and  a  warranty  of  a  manufactured  article.  No  prudence  can  guard 
against  latent  defects  in  a  horse;  but  by  providing  proper  materials,  a 
merchant  may  guard  against  defects  in  manufactured  articles;  as  he  who 
manufactures  copper  may,  by  due  care,  prevent  the  introduction  of  too 
much  oxygen:  and  this  distinction  explains  the  case  of  jB/we// v.  Osborriy 
in  whicli  Lord  Ellenhoroxigh  held,  that  the  defendant,  who  had  sold  a 
bowsprit,  was  not  responsible  for  a  failure  arising  out  of  a  latent  defect 
in  the  timber. 

The  decisions,  however,  touching  the  sale  of  horses  turn  on  the  same 
principle.  If  a  man  sells  a  horse  generally,  he  warrants  no  more  thao 
that  it  is  a  horse;  the  buyer  puts  no  question,  and  perhaps  gets  the  ani- 
mal the  cheaper.  But  if  he  asks  for  a  carriage  horse,  or  a  horse  to  carry 
a  female,  or  a  timid  and  infirm  rider,  he  who  knows  the  qualities  of  the 
animal,  and  sells,  undertakes,  on  every  principle  of  honesty,  that  it  is 
fit  for  the  purpose  indicated.  The  selling,  upon  a  demand  for  a  horse 
with  particular  qualities,  is  an  affirmation  that  he  possesses  those  quali- 
ties. So  it  has  been  decided,  if  beer  be  sold  to  be  consumed  at  Gibral- 
tar, the  sale  is  an  affirmation  that  it  is  fit  to  go  so  far.  Whether  or  not 
an  article  has  been  sold  for  a  particular  purpose,  is  indeed,  a  question  of 
fact;  but  if  sold  for  such  purpose,  the  sale  is  an  undertaking  that  it  is  fit. 
As  to  the  puffs  to  which  allusion  has  been  made,  the  Court  has  no  wish 
to  encourage  them:  they  arc  mere  traps  for  buyers;  and  if  a  case  were  to 
arise  out  of  a  contract  made  under  such  circumstances,  and  it  were  shown 
that  the  article  puffed  was  of  inferior  quality,  when  asserted  to  be  of  the 
best  materials  and  workmanship,  the  seller  would  be  bound  to  take  it 
back,  or  make  compensation  in  damages. 

These  principles  decide  the  present  case  in  favour  of  the  plaintiff. 
After  what  Lord  Tenterden  had  said  in  Gray  v.  CoXy  I  declined  expres- 
sing an  opinion  at  Nisi  Prius;  but  I  expected  the  jury  would  have  found 
that  the  article  was  not  properly  manufactured,  for  the  testimony  of  the 
scientific  witnesses  was  very  clear;  and  though  the  conduct  of  the  defen- 
dants was  most  upright,  the  article  they  sold  had  certainly  suffered  in  the 
manufacture.  At  all  events,  the  warranty  given  by  them  is  not  satisfied, 
because  the  jury  find  that  there  is  an  intrinsic  defect  in  an  article  manu- 
factured by  them. 

Old  cases  have  been  cited;  and  Chandeloitr  v.  Lopxis  at  the  head  of 
them:  but  that  does  not  bear  on  the  question,  because  all  that  the  Court 
decided  is,  that  to  render  the  defendants  liable,  there  must  be  a  warranty 
or  a  false  representation.  15ut  the  case  does  not  decide  there  must  be  an 
express  warranty;  an  implied  warranty  would  satisfy  the  terms  of  the  de- 
cision. Here  there  has  been,  in  my  opinion,  an  express  warranty.  The 
most  material  case  is  Parkinson  v.  Lee:  but  the  point  was  not  decided 
there:  the  Court  only  decided,  that  a  warranty,  that  hops  sold  should  be 
equal  to  sample,  was  satisfied  by  shewing  that  they  were  equal  to  sample, 
although  not  perfectly  good  and  merchantable.  Then  the  defect  com- 
plained of  was  in  a  product  of  nature,  not  of  human  art,  and  was  un- 
known to  the  sellers.  That  case  loo,  was  decided  in  1802,  and  Gibbs 
C.  J.  cannot  be  supposed  to  have  been  unacquainted  with  it,  when  he 
decided  Laing  v.  Fidgeon,  in  1815;  yet  he  there  decided  the  point 


5  Bingham,  533.  533 

now  in  dispute,  that  in  every  contract  to  furnish  manufactured  goods, 
however  low  the  price,  it  is  an  implied  term,  that  the  goods  should  be 
merchantable. 

The  law,  then,  resolves  itself  into  this; — that  if  a  man  sells  generally,  he 
undertakes  that  the  article  sold  is  fit  for  some  purpose;  if  he  sells  it  for 
a  particular  purpose,  he  undertakes  that  it  shall  be  fit  for  that  particular 
purpose. 

In  the  present  case  the  copper  was  sold  for  the  purpose  of  sheathing 
a  ship,  and  was  not  fit  for  that  purpose  :  the  verdict  for  the  plaintiff, 
therefore,  must  stand  :  the  case  is  of  great  importance  ;  because  it  will 
teach  manufacturers  that  they  must  not  aim  at  underselling  each  other 
by  producing  goods  of  inferior  quality,  and  that  the  law  will  protect 
purchasers  who  are  necessarily  ignorant  of  the  commodity  sold. 

Park  J.  I  entertain  no  opinion  adverse  to  the  character  of  the  de- 
fendants, because  the  mischief  may  have  happened  by  the  oversight  of 
those  whom  they  employ  ;  but  on  the  case  itself  I  have  no  doubt,  distin- 
guishing, as  I  do,  between  the  manufacturer  of  an  article  and  the  mere 
seller.  The  count  on  which  the  jury  have  found  for  the  plaintiff  states,  that 
the  defendants,  by  falsely  and  fraudulently  warranting  that  copper  which 
had  been  manufactured  by  them  was  reasonably  fit  and  proper  for  the 
purposes  of  sheathing  the  bottom  of  a  vessel,  sold  the  copper  to  the 
plaintiff  for  a  large  sum  of  money,  whereas  the  copper  was  wholly  unfit 
for  the  purpose,  and  of  little  or  no  use  to  the  plaintiff.  Now,  inde- 
pendently of  the  evidence  of  Fisher,  wliich  goes  to  shew  an  express 
warranty,  is  there  not,  where  the  purchaser  cannot  judge  of  the  interior 
of  the  article,  and  buys  for  a  particular  purpose,  an  implied  warranty, 
that  the  article  is  fit  and  proper  for  the  purpose  for  which  it  is  pur- 
chased? And  it  is  surely  improper  that  copper,  which  usually  lasts 
four  or  five  years,  should  corrode  in  a  single  voyage.  It  has  been  ar- 
gued, that  in  all  cases  there  must  be  a  warranty,  or  a  scienter  and  fraud. 
Perhaps  so  ;  but  till  the  cause  comes  to  ])roof,  it  cannot  appear  whether 
the  warranty  be  implied  or  express  ;  and  it  will  be  enough  to  show  tliat 
there  is  an  implied  warranty,  from  the  nature  of  the  dealing  between 
the  parties.  In  the  cases  referred  to,  the  point  has  been  decided,  to  the 
full  extent  that  the  plaintiff  requires  in  this  case.  The  principal  object 
of  attack  has  been  the  case  of  Gray  v.  C'o.r,  where  Lord  Tcntcrden 
said,  "that  if  a  person  sold  a  commodity  for  a  particular  purpose,  ho 
must  be  understood  to  warrant  it  reasonably  fit  and  proper  for  sucli 
purpose."  And  this  is  not  to  be  esteemed  an  obiter  dictum,  because 
the  other  judges  differ  from  him.  It  is  his  ju(lji;mcnt  formally  given, 
and  goes  to  support  the  argument  for  the  plaintiff  in  this  cause.  The 
other  judges,  indeed,  only  doubted  whether  the  warranty  given  in  evi- 
dence supported  the  warranty  laid  in  the  declaration,  which  was  very 
extensive  :  a  doubt  in  which  Lord  Tcnterdcn  concurred.  But  if  the 
declaration  had  been  framed  in  the  language  of  the  present,  it  is  proba- 
ble the  evidence  in  support  of  it  would  have  been  deemed  sufficient. 
In  Fisher  v.  S'amnc/fi,  the  pininliff  had  paid  for  the  goods  after  an  action 
had  been  brought  against  liiui  for  tl)e  price,  in  which  he  did  not,  either 
in  bar  or  reduction  of  (laning(\s,  object  to  the  quality  of  the  goods  ;  so 
that  he  may  be  said  to  have  nrqiiiesced  in  the  defect,  and  the  case  has 
no  bearing  on  the  present.  In  Lainq-  v.  Fiilffcoii  the  rule  is  laid  down 
in  the  strongest  terms;  and  no  man  had  more  knowledge  of  commercial 
law  than   ('.  J.    Qibbs.     In    Gardiner  v.  Gray,  Lord   Ellcnborough 


534  Jones  v.  Bright.  E.  T.  1829. 

lays  down  the  samo  rule,  and  says,  that  the  principle  of  caveat  emptor 
does  not  apply  where  the  buyer  has  no  opportunity  of  inspection.  It 
has  been  argued  that  the  plaintilfliad  inspection  here  ;  but  it  was  mere- 
ly of  the  exterior  of  the  commodity,  and  lie  had  no  means  of  knowing 
its  intrinsic  qualities.  In  Okell  v.  Smith,  it  was  laid  down  that  the  sel- 
ler is  bound  to  furnish  a  commodity  that  will  answer  the  purpose  for 
which  it  is  sold  ;  and  Lord  Elleiiboroiigh  said,  in  Bluett  v.  Osborne^ 
that  by  selling  an  article  the  vendor  impliedly  warrants  it  fit  for  the 
purpose  for  which  it  is  sold,  and  that  it  is  important  for  the  interests  of 
commerce  that  it  should  be  so,  I  am  therefore,  clearly  of  opinion, 
that  the  verdict  for  the  plaintifl' should  stand. 

BuRROUGH  J.  I  consider  this  as  more  a  question  of  fact  than  of  law. 
The  question  is,  whether  the  contract  was  proved  as  laid.  It  was  so 
proved  ;  and,  after  Fisher  had  introduced  the  parties,  and  stated  the 
purpose  for  which  the  plaintiff  wanted  the  copper,  the  defendants  war- 
ranted the  article  by  undertaking  to  serve  the  plaintiff  well.  The  alle- 
gation in  the  declaration,  that  the  copper  was  manufactured  by  the  de- 
fendants, is  sufficiently  distinct  ;  it  is  of  the  very  essence  of  the  case, 
and  the  plaintiff  must  have  been  nonsuited  if  he  had  failed  to  prove  it. 
The  declaration  states,  that  the  defendants  sold,  for  the  sheathing  of  a 
ship,  copper  which  had  been  manufactured  by  themselves,  and  falsely 
and  fraudulently  warranted  it  fit  for  the  purpose.  Now,  in  the  case  of 
the  King  v.  Boyall,  2  Burr.  832,  objection  was  taken  to  an  indictment 
against  a  parishioner  for  not  sending  out  carts  to  highway  labour,  that 
the  allegation  touching  the  order  of  the  surveyors  only  mentioned  them 
as  being  surveyors,  without  adding  when  and  how  they  were  appointed  ; 
but  Lord  Mansfield  held  that  being  was  a  sufficient  reason. 

The  defendants  knew  what  the  copper  was  wanted  for,  and  made  it; 
and  the  whole  of  the  tenth  count  is  proved,  except  the  wovA  fraudu- 
lent, which  is  not  material  where  it  is  also  expressly  stated  and  proved 
that  the  defendants  falsely  warranted.  The  copper,  instead  of  lasting 
four  or  five  years,  lasted  only  one  voyage,  and  this  was  proved  to  have 
been  occasioned  by  a  defect  in  the  manufacture. 

I  cannot  comprehend  why  the  action  should  not  lie.  I  put  it  on  the 
ground  of  an  express  warranty  and  the  finding  of  the  jury  that  the 
copper  was  insufficient,  and  am  of  opinion  that  the  verdict  for  the  plain- 
tiff must  stand. 

Gaselee  J.  The  case  has  been  so  fully  gone  into,  that  I  shall  make 
only  one  or  two  observations.  Without  enquiring  whether  the  war- 
ranty here  be  express  or  implied,  it  is  clear  that  where  goods  are  or- 
dered for  a  particular  purpose,  the  law  implies  a  warranty  that  they  are 
fit  for  that  purpose.  That  was  taken  for  granted  in  Fisher  v.Samuda; 
and  though  the  plaintiff,  who  complained  of  the  insufficiency  of  goods 
sold  him,  did  not  recover  in  that  case,  that  was  because  he  had  never 
objected  to  the  quality  of  them  in  an  action  which  had  been  brought  for 
the  price,  and  had  been  conducted  to  judgment  against  him.  It  has 
been  argued,  that  the  counts  on  which  the  plaintiff  has  recovered  in 
this  case  do  not  state  a  sufficient  contract  of  warranty.  If  so,  that  may 
be  urged  in  error;  but  the  counts  could  not  easily  have  been  framed 
otherwise,  as  it  is  never  clear,  on  the  face  of  a  declaration,  whether 
the  warranty  to  be  proved  is  express  or  implied. 

How  far  the  case  might  have  been  altered  if  the  defendants  had  not 
manufactured  the  copper,  I  do  not  sayj  but  as  to  the  warranty,  the  de- 


5  Bingham,  533.  535 

claration  could  scarcely  have  been  other  than  it  is.     Tlie  rule  which  has 
been  obtained  on  the  part  of  the  defendants  must  be  discharged. 

Rule  discharged. 


HUNT  V.  DE  BLAQUIERE.— p.  550. 

A  husband  separated  from  his  wife  by  a  divorce  a  mensa  et  thoro,  for  adultery 
on  his  part,  with  a  decree  of  alimony,  is  liable  for  necessaries  supplied  to  the 
■wife,  if  he  omit  to  pay  the  alimony. 

2.  Furniture  of  a  house  held  to  be  necessaries  for  a  female,  to  whom  the  Court 
had  decreed  3301.  a  year  alimony. 

This  was  an  action  to  recover  the  value  of  furniture  for  a  house  sup- 
plied by  the  plaintiff  to  the  defendant's  wife;  who  had  for  some  years 
been  living  separately  from  her  husband  under  a  sentence  of  divorce  a 
mensa  et  thoro  pronounced  on  the  ground  of  adultery  proved  against 
the  husband.  As  she  was  the  daughter  of  a  marquis,  and  had  brought 
him  a  fortune  of  6000/.,  he  was  ordered  by  a  decree  for  alimony  to  al- 
low her  380/.  a  year  for  her  maintenance.  At  the  trial  before  Best  C. 
J.,  INIiddlesex  sittings  after  Michaelmas  term,  it  appeared  that  pre- 
viously to  the  separation  the  lady  hud  been  treated  with  cruelty  and 
turned  out  of  doors.  And  there  was  no  evidence  that  more  than  6951. 
of  the  alimony  had  been  paid  since  the  date  of  the  decree,  1820.  From 
that  time  tiie  defendant  had  resided  in  France.  The  furniture  in  re- 
spect of  which  the  plaintiff  sought  to  recover  had  been  supplied  in 
1827. 

The  Chief  Justice,  after  stating  that  a  man  who  turned  his  wife  out  of 
doors  gave  her  an  implied  credit  for  necessaries,  directed  the  jury  to 
consider  whether  the  goods  furnished  by  the  plaintiff  to  defendant's 
wife  were  necessary  according  to  her  station,  and  for  a  style  of  living 
not  exceeding  380/.  a  year. 

Tlie  jury  found  that  the  defendant  had  struck  his  wife  and  turned  her 
out  of  doors,  and  gave  a  verdict  for  the  whole  of  tlie  plaintiff's  de- 
mand, 230/. 

Spankie  Serjt.  obtained  a  rule  nisi  to  set  aside  this  verdict  and  enter 
a  nonsuit  instead,  ujjon  the  ground  that,  after  the  decree  for  alimony  in 
the  spiritual  court,  the  husband  was  not  liai)le  to  be  sued  at  common 
law;  and  that  furniture  for  a  house  was  not  necessary  for  a  divorced 
wife  with  an  income  of  380/.  a  year,  who  oughtrathcr  to  live  in  ready- 
furnished  lodgings. 

Wilde  and  A'awc//Scrjls.  shewed  cause,  and  cited  Marshall  v.  Ni(t- 
ton,  8  T.  li.  515;  Ellu^i^'h  v.  Af-i^'V/,  5  T.  U.  G7M;  Lnuis  v.  Lcc,  3  H. 
&  C.  291;  Thompson  \.  Ilarvcy,  4  liurr.  2177;  ManOy  v.  Scott,  1  Lev. 
-1.  1  Mod.  124.  1  Sid.  lOy;  Barrett  v.  Booty,  8  Taunt.  343;  Nurse  v. 
Craig-,  2  N.  R.  153;  Ozard  y.  Darnford,  Selw.  N.  P.  200. 

Spankie  and  Stephen  Serjts.  contra,  referred  to  Pr.  in  Ch.  Ill; 
C humhcrlaine  v.  Ilcwson,  5  Mod.  70;  Motterani  v.  Motteram,  3 
Bulstr.  2G4;  1  Mod.  127,  128,  138;  Nurse  v.  Craiii;  Keei^anv.  Smith, 
5B.  SiC.  375;  Smith  v.  The  Sheriff  n/  Middlesr'.v,  15  East,  (iO!>. 

Best  C,  J.  This  was  an  action  to  recover  tlu;  price  of  houseiioid  fur- 
niture provided  l)y  the  plaintifl  for  liudy  Harriet  dc  niaquicre,  the  wife 
of  the  defendant.     A  verdict  was  found  for  the  plaintiff,  upon  which  a 


536  Hunt  v.  De  Blaquiere.  E.  T.  1829. 

motion  has  been  made  to  set  it  aside  and  enter  a  nonsuit  instead  on  two 
grounds:  First,  that  a  decree  of  the  ecclesiastical  court,  assigning  alimo- 
ny to  Lady  Harriet,  is  an  answer  to  the  action;  and,  secondly,  that  the 
articles  supplied  were  not  necessary  for  a  person  in  her  situation. 

The  jury  found  that  the  defendant  had  stricken  his  wife,  and  turned 
her  out  of  doors. 

If  a  man  turns  his  wife  out  of  doors,  it  has  been  said  by  judge  after 
judge,  that  he  sends  her  forth  with  an  implied  credit  for  necessaries. 
This  is  the  general  law,  and  the  defendant  is  liable  under  it,  unless  the 
obligation  cast  on  him  by  turning  his  wife  out  be  discharged  by  something 
subsequent.  It  has  been  asserted  that  the  decree  for  alimony  is  a  dis- 
charge; but  no  decision  has  been  cited  which  can  be  said  to  establish  that 
proposition.  In  Manhy  v.  Scott,  though  some  of  the  opinions  of  some 
of  the  judges  seem  favourable  to  such  a  position,  the  point  decided  was 
far  different.  That  was  a  case  in  which  necessaries  had  been  furnished 
to  a  woman  who  had  eloped  from  her  husband — I  infer  criminally,  be- 
cause the  word  eloped  is  never  used  in  any  other  sense: — her  husband 
refused  to  receive  her  again,  and  the  judges  held  he  was  not  liable  for  ne- 
cessaries. That  case  has  been  recognised  in  subsequent  decisions;  and  it 
was  again  laid  down  in  Govier  v.  Hancock,  6  T.  R.  603,  that  the  hus- 
band is  not  liable  where  the  wife  deserts  him  criminally.  Undoubtedly 
in  Manhy  v.  Scott,  some  of  the  judges  say  that  the  wife  should  apply  to 
the  ecclesiastical  court;  but  that  such  is  her  only  resource  is  contradicted 
by  all  the  practice  of  Westminster  Hall,  for  if  it  were  so,  none  of  the 
actions  which  have  been  brought  by  tradesmen  for  necessaries  furnished 
to  the  wife  could  have  been  sustained. 

Although  we  entertain  great  respect  for  the  opinions  of  Chief  Justice 
Hale,  the  answer  given  by  Mr.  Justice  Twisden  is  conclusive — '*  Is  the 
wife  to  starve?"  and  it  is  not  necessary  in  such  a  case  to  imply  agency  on 
the  part  of  the  wife:  the  husband  is  at  all  events  liable:  this  we  might  lay 
down  on  principle,  even  if  there  were  no  decision  on  the  point.  But 
Nurse  \.  Craig  is  an  express  authority:  and  the  opinion  of  the  three 
judges  in  that  case  is  confirmed  by  Gibbs  C.  J.  and  the  rest  of  the  Court 
in  Barrett  v.  Booty.  But  it  has  been  argued  that  by  taking  the  decree 
in  the  ecclesiastical  court,  the  wife  makes  her  election:  and  so  she  docs 
where  she  accepts  a  provision  for  a  separate  maintenance,  as  in  Nurse  v. 
Craig.  But  it  is  not  the  decree  or  the  deed  that  discharges  the  husband, 
but  the  observance  of  it.  There  never  was  a  case  in  which  such  an  ar- 
gument could  be  adduced  with  less  plausibility  than  in  the  present.  It 
has  been  said,  indeed,  the  husband  is  only  liable  when  shewn  to  be  con- 
tumacious; but  if  he  be  ordered  to  pay  alimony  on  a  particular  day,  he  is 
contumacious  as  soon  as  he  omits  to  pay  at  the  appointed  time.  The  ec- 
clesiastical court  orders  the  defendant  in  1820  to  pay  his  wife  380/. 
a  year  (only  80/.  a  year  beyond  her  own  fortune),  and  in  1829  he  had 
paid  altogether  no  more  than  695/.  As  to  the  writ  de  estoveriis  haben- 
dis,  the  wife's  being  entitled  to  that  does  not  carry  the  matter  further 
than  her  right  to  sue  in  the  ecclesiastical  court.  The  tradesman  has  still 
his  action,  for  he  cannot  compel  her  to  sue.  I  am  therefore  of  opinion, 
that  the  defendant  is  not  discharged  from  his  liability.  Whether  the  ar- 
ticles furnished  by  the  plaintiff  were  necessaries,  was  a  question  for  the 
jury.  I  put  it  to  them  whether,  with  an  income  of  380/.  a  year,  it  was  fit 
that  the  defendant's  wife,  the  daughter  of  a  marquis,  should  hire  a  house, 
or  whether  she  was  bound  to  live  in  furnished  lodgings.     They  thought 


5  Bingham,  550.  537 

it  not  proper  that  a  person  in  her  station  should  be  compelled  to  live  in 
lodgings,  and  I  am  satisfied  with  their  verdict. 

Park  J.  I  concur  in  the  opinion  which  has  been  given.  The  ques- 
tion is,  Whether  a  deed  of  separate  maintenance,  or  a  decree  for  alimo- 
ny, will  discharge  a  husband  from  liability,  when  the  sum  secured  by  the 
deed  or  decree  is  not  paid?  and  I  am  of  opinion  it  will  not.  The  defen- 
dant forced  his  wife  from  his  house,  with  circumstances  of  cruelty;  he 
was  divorced  from  her  for  adultery  committed  by  himself;  and  he  has 
complied  very  little  with  the  decree  for  alimony.  But  he  is  bound  to 
provide  for  his  wife;  and  all  the  cases  shew  that  the  alimony  must  not 
only  be  secured  but  paid.  In  this  the  text  writers  all  concur.  Bacon's 
»/ibridgment,  4SS,  contains  the  whole  of  the  judgment  of  Hale  C.  J. 
in  Manby  v.  Scott,  and  the  summary  which  the  learned  compiler  extracts 
from  it  is  as  follows: — 

"It  is  clear  that  a  husband  is  obliged  to  maintain  his  wife,  and  may 
by  law  be  compelled  to  find  her  necessaries,  as  meat,  drink,  clothes, 
physic,  &c.  suitable  to  the  husband's  degree,  estate,  or  circumstances. 
It  seems  also  settled,  that  the  wife  is  not  to  be  her  own  carver,  and  that 
she  hath  not  an  absolute  power  of  binding  the  husband  by  any  contract 
of  hers,  though  for  necessaries,  without  his  assent  precedent  or  subse- 
quent. The  law,  therefore,  in  these  cases,  as  it  seems  established  by 
usage  and  practice,  is  to  leave  it  to  the  jury  to  find  whether  the  husband 
consented  or  not;  and  though  no  express  consent  or  agreement  of  his 
be  proved,  yet  if  it  appears  that  she  cohabited  with  her  husband,  and 
bought  necessaries  for  herself,  children  or  family,  the  husband  shall  be 
chargeable,  and  the  jury  may  find,  on  their  oaths,  that  they  came  to  the 
husband's  use,  he  being  by  law  obliged  to  provide  for  them:  also,  if  she 
cohabits  with  her  husband,  and  is  ever  so  lewd,  he  shall  be  liable  for  her 
necessaries,  for  he  took  her  for  better  for  worse:  so  if  he  runs  away 
from  her,  or  turns  her  away,  or  forces  her  by  cruelty  or  ill  usage  to  go 
away  from  him:  but  if  he  allows  her  a  separate  maintenance,  or  pro- 
hibits particular  persons  from  trusting  her,  lie  shall  not  be  liable  during 
the  time  that  ho  pays  such  separate  maintenance,  nor  for  necessaries 
taken  up  of  those  persons  particularly  prohibited;  for  in  these  cases  no 
consent,  but  rather  the  contrary  appears:  i)uta  general  warning  or  notice 
in  the  Gazette,  or  other  ncws[)apL'r,  not  to  trust  her,  is  not  a  suflicient 
prohibition;  also  the  jury  arc  to  determine  as  to  the  wil\;'s  necessity, 
the  husb.md's  degree  and  circumslanof's,  and  the  value  of  llie  things  sold 
and  delivered,  and  give  a  verdict  ami  assess  damages  accordingly." 

I  do  not  feel  it  necessary  to  diller  from  the  decision  in  Manhi/  v.  Scott. 
There,  the  wife  eloped,  lived  away  several  years,  and  tiie  husband  re- 
fused to  receive  her  again;  and  Hyde  J.  refers  to  the  case  of  the 
Prodigal  Son;  so  that  it  is  clear  the  wife  had  been  living  improperly. 
In  Nurse  v.  Crni<r,  it  is  true,  the  judges  did  not  all  agree;  but  the 
opinion  of  lleat/i  .1.  is  the  more  important,  as  he  had  originally  thought 
difTcrontly;  and  Chitmhre  .1.  puts  the  case  exjiros.sly  on  the:  ground  that 
the  soparntc  mainlcnanc-c  had  not  boen  paid.  Ilcsavs,  "11  n-ason,  jus- 
tice, or  humanity  ought  to  govern  in  the  present  case,  I  think  it  my 
duty  to  consent  to  the  allowance  of  this  action,  since  all  the  reasons  upon 
which  exceptions  to  this  kind  of  action  have  been  fountled,  totally  fail 
in  the  present  instance." 

No  distinction  can  bo  drawn  between  maintenanro  nnrler  a  separation 
deed,  and  maintenance  by  virtue  of  a  dence  for  alimony.      It  has  been 

VOL.  IV.  6S 


538  Hunt  v.  De  Blaquiere.  E.  T.  1829. 

urged,  indeed,  that  the  wife  should  enforce  the  decree  of  the  ecclesias- 
tical court;  but,  in  order  to  do  that,  she  must  first  obtain  money,  and  it 
would  be  diflicult  to  execute  a  writ  de  excommunicato  capiendo  while 
the  husband  is  in  a  foreign  country.  Nurse  v.  Craig,  therefore,  is  a 
much  stronger  case  than  the  present,  because  the  trustee  might  have 
sued  for  the  allowance.  Perhaps  a  jury  would  not  be  permitted  to  say 
whether  or  not  the  allowance  was  suHicient;  but  whether  or  not  articles 
supplied  are  necessary,  is  a  question  within  their  province.  Keegan  v. 
S?nith  has  no  bearing  on  the  subject  of  discussion;  for  the  wife  must 
starve  unless  we  decide  in  favour  of  the  plaintiff.  No  answer  has  been 
given  to  Ozard  v.  Damford,  where  Lord  Mansfield  expressly  draws 
the  distinction  between  an  allowance  agreed  for  and  an  allowance  paid. 
In  his  charge  to  the  jury  in  that  case,  he  laid  it  down  as  clear  and  de- 
cided law,  "  That  when  husband  and  wife  live  together,  the  husband  is 
liable  for  all  such  necessaries  wherewith  the  wife  may  have  been  fur- 
nished; but  that  what  are  or  are  not  necessaries  must  depend  on  the 
rank  and  situation  of  the  husband:  that  where  they  live  separate,  the 
person  who  gives  credit  to  the  wife  is  to  be  considered  as  standing  in 
her  place,  inasmuch  as  the  husband  is  bound  to  maintain  her;  and  the 
spiritual  court,  or  court  of  equity,  will  compel  him  to  grant  her  an  ade- 
quate alimony.  But  if  she  elope  from  her  husband,  and  live  in  adul- 
tery— or  if,  upon  separation,  the  husband  agrees  to  make  her  a  sufficient 
allowance,  and  pays  it — in  either  of  those  cases  the  husband  is  not  liable; 
because  in  the  former  case  she  forfeits  all  title  to  alimony,  and,  in  the 
latter,  has  no  further  demands  on  her  husband.  And  as  in  all  cases  the 
creditor  is  to  be  considered  as  standing  in  the  wife's  place,  it  imports 
him,  when  the  wife  lives  apart  from  her  husband,  to  make  strict  en- 
quiry as  to  the  terms  of  separation;  for,  in  such  cases,  he  must  trust  her 
at  his  peril." 

In  a  similar  case  of  Turner  v.  Winter,  Selw.  N.  P.  260,  his  Lord- 
ship nonsuited  the  plaintiff,  because,  on  separation,  the  defendant  had 
agreed  to  make  an  allowance  to  his  wife  and  had  regularly  paid  it,  not- 
withstanding the  plaintiff  had  no  notice  of  the  transaction.  But  the  al- 
lowance must  be  sufficient,  according  to  the  degree  and  circumstances 
of  the  husband;  and  the  adequacy  of  the  allowance  is  a  question  of  fact 
for  the  jury.     Hodgkinsonv.  Fletcher,  4  Camp.  70, 

BuRROUGH  J.  Tradesmen  must  look  to  the  circumstances  of  the 
wife,  and  of  her  separation  from  her  husband.  If  the  husband  turns 
her  out  of  doors,  he  is  liable  for  necessaries;  if  she  elopes,  she  can 
claim  neither  maintenance  nor  dower.  Here  there  is  no  imputation  on 
the  wife:  the  husband  beats  and  turns  her  out  of  doors,  and  all  the  wrong 
is  on  his  side:  he  is  ordered  to  pay  alimony,  and  now  attempts  to  avail 
himself  of  his  own  wrong,  and  because  he  omits  to  pay  the  alimony, 
refuses  to  pay  the  tradesman.  To  permit  him  to  act  in  such  a  way 
would  be  contrar}^  to  all  principle.  The  writ  de  estoveriis  habendis  is 
only  in  lieu  of  alimony,  and  does  not  affect  the  right  of  the  tradesman 
to  sue, — or  all  the  practice  of  Westminster  Hall  is  wrong.  The  hus- 
band is  not  discharged  unless  he  pay  the  alimony  or  separate  mainten- 
ance; and  there  is  no  difference  whether  the  provision  be  by  deed  or 
decree.  As  to  the  objection  that  the  articles  supplied  were  not  neces- 
saries, the  defendant's  wife  must  have  a  house  to  live  in,  and  if  so,  could 
not  dispense  with  tables  and  chairs.  It  was  incumbent  on  the  defend- 
ant to  shew  that  he  had  paid  the  alimony,  and  not  on  the  plaintiff  to 
shew  that  it  was  unpaid. 


5  Bingham, 550.  539 

Gaselee  J-  There  is  no  case  in  which  the  wife  has  been  precluded 
from  obtaining  credit  for  necessaries,  where  the  husband  has  turned  her 
out  of  doors,  or  has  so  conducted  himself  that  a  decent  woman  could 
not  remain  with  him.  On  the  contrarj^,  in  Ozard  v.  Damford,  Lord 
Mansfield  says,  "In  all  cases  the  creditor  is  to  be  considered  as  stand- 
ing in  the  wife's  place.  It  imports  him,  when  the  wife  lives  apart  from 
her  husband,  to  make  strict  enquiry  as  to  the  terms  of  separation;  for 
in  such  cases  he  must  trust  her  at  his  peril." 

In  deciding  thus,  we  shall  not,  as  it  has  been  argued,  go  beyond  the 
decision  in  Nurse  v.  Craig,  because  if  the  objection  to  the  form  of  ac- 
tion in  that  case  had  prevailed,  I  should  still  say  that  an  action  would  lie. 

The  rule  for  a  nonsuit  must  be 

Discharged, 


END   OP    EASTER    TERM. 


AN   INDEX 


TO    THE 


PRINCIPAL    MATTERS 


CONTAINED    IN    THIS    VOLUME. 


ABANDONMENT. 
See  Iksubarcb. 

ABATEMENT. 

See  Pbactice. 

ACCOUNT. 

See  Evidence. 

ACT  OF  GOD. 

See  IssuRANCK. 

ACTION  ON  THE  CASE. 

An  individual  who  has  sufTered  loss  in 
consequence  of  the  decay  of  sea-walls, 
which  a  corporation  is  directed  to  repair 
under  the  terms  of  a  grant  from  tlie 
crown  conveying  a  borough,  and  a  pier 
or  quay  with  tolls,  to  the  corporation, 
may  sue  the  corporation  for  damages. 
Uenly  v.  Tlie  Mayor  and  Burgesses  of 
Lyme.  376 

,  F. ,  who  had  hired  a  ship  and  its  tackle 
of  the  plaintiff  for  three  voyages,  at  the 
end  of  the  first,  being  apprehensive  of  a 
seizure  under  the  process  of  an  admi- 
ralty court,  placed  the  cables  and  an- 
chors on  the  defendant's  wharf,  ulong- 
.sidc  of  which  the  ship  lay.  Tiie  siiip 
was  then  seized  for  seamen's  wages  and 
a  flebt  on  bottomry,  and  shortly  after- 
wards was  sold  under  admiralty  process, 
without  the  anchors  and  cables. 

Two  days  before  the  sale,  the  plaintiff 
demanded  of  the  defendant  the  anchors 
and  cables  on  his  wharf,  which  the  de- 
fendant, holding  them  from  F.,  refused 
to  give  up. 

Held,  that  on  this  demand,  previous 
to  the  sale,  the  pl.-^intif]'  could  not  sue 
the  defendant  for  the  anchors  and  cables 
in  trover,  although  they  had  not  been 


removed  out  of  the  ship  in  the  ordinaj-r 
course  of  business:  Held,  also,  that  the 
removal  of  them  from  the  ship  to  the 
wharf,  whereby  they  escaped  the  admi- 
ralty sale,  was  no  injury  to  tlie  plaintiff's 
reversionary  interest.  Ferguson  v.  Chris- 
tall  and  another.  454 
3.  The  plaintiff' purchased  from  the  ware- 
house of  the  defendant,  the  manufac- 
turer, copper  for  sheathing  a  ship.  The 
defendant,  who  knew  the  object  for 
which  the  copper  was  wanted,  said,  •'  I 
will  supply  you  well." 

The  copper,  in  consequence  of  some 
intrinsic  defect,  the  cause  of  which  was 
not  proved,  having  lasted  only  four 
months,  instead  of  four  years,  the  ave- 
rage duration  of  such  an  article. 

Held,  in  an  action  on  the  case  in  the 
nature  of  deceit,  that  the  plaintiff  was 
entitled  to  damages^  Jones  v.  Bright 
and  others.  529 

ADMINISTRATOR. 
Sec  ExECCTOB.    Limitations.    I'leauino. 

ADVERSE  POSSESSION. 
Sec  Ejectment. 

AFFIDAVIT. 
See  Practice. 

ALIEN. 
See  JuHon. 

ALLUVIAL  LAND 

Land,  not  suddcidy  derelict,  but  formed 
by  alluvion  of  the  sea,  imperceptible  in 
progress,  belongs  to  the  owner  of  the 
arljoiiiing  demesne  lands  and  not  to  the 
rrown.  iSYr  Robert  Giffnrd,  appellant; 
llir  High  I  Honourable  Lord  Yar  borough, 
rcpondcnt,  40j 


.542 


INDEX. 


AMl'-NDMENT. 

.S'te  I'tKAUlSU.       PllACTlCli. 

ANNUITY. 

Before  suing  the  surety  of  the  grantor  of 
ail  annuity  in  respect  of  arrears  of  the 
annuity,  where  the  grantor  has  become 
bankrupt,  tlie  value  of  the  annuity  must 
be  ascertained  by  the  commissioners,  al- 
though the  annuity  was  granted,  and  the 
grantor  became  bankrupt,  previously  to 
September,  1825.     Bell  v.  Bilton.       yO 

APPEAL. 

1 ,  On  the  hearing  of  an  appeal  against  a 
poor-rate,  the  sessions  have  no  jurisdic- 
tion to  quash  the  rate  for  a  defect  ap- 
pearing on  the  face  of  the  rate  itself, 
unless  that  defect  be  specified  in  the  no- 
tice as  a  cause  of  appeal.  The  King  v. 
The  Inhabitants  of  Bromyard.  210 

2.  The  17  G.  2.  c.  38.  s.  4.  does  not  make 
it  imperative  on  the  justices  to  hear  and 
determine  an  appeal  at  the  sessions  next 
following  the  publication  of  the  rate, 
but  they  may  adjourn  it  to  the  next  ses- 
sions. Where  a  rate  was  published  on 
the  16th  September,  and  the  appeal  was 
entered  at  the  Michaelmas  sessions,  but 
the  defendant  did  not  give  notice  of  his 
intention  to  try  his  appeal  at  those  ses- 
sions, and  tlie  justices  adjourned  it  as  a 
matter  of  course  to  the  Epiphany  ses- 
sions, according  to  the  usual  practice, 
and  the  appellant  gave  notice  of  his 
intention  to  try  his  appeal  at  the  Epiph- 
any sessions,  when  the  justices  refused 
to  hear  it,  on  the  ground  that  it  ought 
to  have  been  heard  and  determined  at 
the  preceding  sessions,  this  Court  grant- 
ed a  mandamus  to  compel  them  to  hear 
the  appeal.  The  King  v.  The  Justices 
of  Wilts.  242 

.3.  By  the  statute  4  G.  4.  c.  95.  s.  87,  a  right 
of  appeal  is  given  in  certain  cases,  if  the 
party  gives  notice  within  six  days  after 
the  cause  of  complaint  arises,  'i'wo  jus- 
tices having  made  an  order  upon  the  sur- 
veyors of  the  roads  in  a  township  to  per- 
form a  certain  part  of  the  statute  duty 
on  a  turnpike  road  running  through  the 
township,  and  to  pay  to  the  surveyor  of 
that  road  a  certain  part  of  tlie  money  re- 
ceived as  a  composition  for  statute  duty: 
Held,  that  the  cause  of  complaint  did 
not  arise  until  a  copy  of  the  order  in 
writing  had  been  served,  and  that  no- 
tice of  appeal  given  within  six  days  from 
that  time  was  valid.  The  King  v.  The 
Justices  of  iMncashirc.  309 

4.  Semble,  That  it  is  unnecessary  to  enter 
and  respite  an  appeal  at  the  next  ses- 
sions, where  the  order  of  removal  is 
served  so  late  as  to  render  it  impossible 
to  try  the  appeal  at  those  sessions.  The 
King  V.  The  Judicct  of  Kent.  324 


APOTHECARY. 

A  person  having  a  certificate  from  the 
College  of  Surgeons  cannot  charge  for 
attending  a  patient  in  a  fever,  unless  he 
have  also  a  certificate  from  the  Apothe- 
caries' Company.  Allison  v.  Haydon.  90 

ARBITRATION. 

1.  A  submission  to  arbitration  contained  a 
stipulation  that  it  should  not  be  vacated 
by  the  death  of  either  of  the  parties,  but 
that,  notwithstanding  such  an  event, 
matters  should  be  proceeded  in. 

The  final  award  having  been  made 
after  the  death  of  one  of  the  parties: 
Held,  that  a  surety  for  the  fulfilment  of 
it  was  liable.  M'Dougal  v.  Robertson 
and  aiiother.  31 

2.  Debt  lies  on  the  decree  of  a  colonial 
court  made  for  payment  of  the  balance 
due  on  a  partnership  account.  One  of 
the  partners  gave  his  son  a  power  of  at- 
torney "to  act  on  his  behalf  in  dissolv- 
ing the  partnership,  with  authority  to 
appoint  any  other  person  as  he  might 
see  fit:"  Held,  that  this  gave  the  son 
power  to  submit  the  accounts  to  arbitra- 
tion.    Henley  v.  Soper  the  Elder.        147 

ARREST. 

See  PiiACTicB. 
Where  by  the  contrivance  of  plaintiff's  at- 
torney, a  party  had  been  arrested  on  a 
Sunday  on  criminal  process,  for  the  pur- 
pose of  effecting  his  arrest  on  civil  pro- 
cess, and  he  was  detained  in  custody  till 
Monday,  and  then  arrested  on  the  civil 
process,  the  Court  ordered  him  to  be 
discharged  out  of  custody. 

Qu?ere,  Whether  a  party  can  be  arrest- 
ed a  third  time  for  the  same  cause  of  ac- 
tion.    fVelk,  administrator,  v.  Gurney. 

336 

ASSIGNMENT. 

See  Covenant. 

ASSUMPSIT. 

See  Bill  of  Exchange.     Vendor  and 
Plhchaseh.    Condition  Phecbdent. 

1.  The  charterer  of  a  ship  having  con- 
signed his  cargo  to  P.,  who  placed  it  in 
defendant's  hands  to  sell  it,  the  defend- 
ant, by  an  agreement  which  stated  those 
facts,  undertook  to  pay  plaintiff,  the 
owner  of  the  ship,  freight  and  demur- 
rage, if  any  were  due,  and  in  every  re- 
spect to  put  himself  in  the  place  of  the 
charterer. 

Fifty  running  days  were  allowed  by 
the  charter-party  for  loading  and  unload- 
ing, and  ten  for  demurrage,  at  10/.  a  day. 
The  ship  having  occupied  ninety-five 
days  in  loading  and  unloading,  several 
of  which  elapsed  after  the  date  of  tlic 
defendant's  agreement:  Held,  that  he 


INDEX. 


543 


was  liable  in  damages  in  respect  of  de- 
murrage for  the  whole,  and  that  a  suffi- 
cient consideration  appeared  on  the  face 
of  the  agreement.    Benson  v.  Hippius. 

38 

2.  Where  A.  and  B.  deposited  money  in 
the  hands  of  a  stake-holder,  to  abide  the 
event  of  a  boxing-match  between  them; 
and  after  tlie  battle  A.  claimed  tlie  whole 
sum  from  the  stake-holder,  and  threaten- 
ed him  with  an  action  if  he  paid  it  over 
to  B.,  which  he  nevertheless  did,  by  the 
direction  of  the  umpire:  Held,  that  A. 
was  entitled  to  recover  from  him  his 
own  stake,  as  money  had  and  received 
to  his  use.     Hastelow  v.  Jackson.         204 

3.  A.  having  a  patent  for  certain  spinning 
machinery,  received  an  order  from  B.  to 
have  some  spinning  frames  made  for 
him.  A.  employed  C.  to  make  the  ma- 
chines for  B.,  and  informed  the  latter 
that  he  had  so  done.  After  the  machines 
had  been  completed,  A.  ordered  them 
to  be  altered.  They  were  afterwards 
completed  according  to  this  new  order, 
and  packed  up  in  boxes  for  B.,  and  C. 
informed  B.  that  tliey  were  ready,  but 
he  refused  to  accept  them :  Held,  that 
C.  could  not  recover  the  price  from  B. 
in  an  action  for  goods  bargained  and 
sold,  or  for  work  and  labour,  and  mate- 
rials. AtkirLson  and  others.  Assignees  of 
Sleddon,  v.  Hell  and  others.  216 

4.  Where  A.  at  the  request  of  B.,  entered 
into  a  bond  with  him  and  C.  to  indemni- 
fy D.  against  certain  debts  due  from  C. 
and  I).,  and  B.  promised  to  save  A. 
harmless  from  all  loss  Ijy  reason  of  tlic 
Ijond:  Held  that  tliis  promise  was  bind- 
ing, although  not  in  writing,  and  tliat  A. 
might  recover  from  B.  the  whole  of  tlic 
monies  which  he  was  compelled  to  pay 
by  virtue  of  the  l)ond.  fV.  Thomas  v. 
William  Cook.  333 

5.  A  written  agreement,  "  to  remain  witli 
A.  B.  two  years  for  tlie  purpose  of  learn- 
ing a  trade,"  is  not  binding,  for  want  of 
an  engagement  in  the  same  instrument 
by  A.B.  to  te.ich.   Lersv.  IVhilconili.  357 

6.  A  child  at  school,  for  wiiom  payment 
had  been  made  f|uarterly,  was  sent  home 
for  illness  four  days  after  the  commence- 
ment of  a  quarter,  and  did  not  relurn: 
Held,  that  tlie  master  was  entitl.-d  to  a 
whole  fiuarter's  schooling,  althouKli 
there  was  no  express  contract  for  a  quar- 
ter's notice  or  a  rpiarter's  pay,  and  al- 
though the  school  wjLs  a  day-school,  at 
whifh  the  child  wxs  the  only  boarder. 
Col  lit  IS  v.  Price.  ;]H'.) 

ATTACHMKNT. 

See  EviDRSfK,  ArToHxr.T. 
ATTORNEY. 
1.   The  Court  will  not  rompri  an  attornrv 
to  pay  a  sum  of  money  he  has  received 


in  his  character  of  attorney;  he  having 
after  the  receipt  of  the  money  become 
bankrupt  and  obtained  his  certificate. 
Ex  parte  CulUford  v.  Wairen,  Gent., 
one,  &c.  203 

2.  Where  a  judge's  order  for  taxing  an  at- 
torney's bill  is  not  obtained  until  after 
he  has  commenced  an  action  for  the 
amount,  the  defendant  is  not  entitled  to 
the  costs  of  taxation,  although  more  than 
one-sixth  is  taken  off  by  the  Master.  Jay, 
Gent.,  one,  SJc.  v.  Coaks.  323 

AWARD. 

See  Phactice. 
1.  The  objections  against  an  award  ought 
to  be  specified  in  a  rule  nisi  obtained  for 
the  purpose  of  setting  it  aside;  but  an 
omission  in  that  respect  is  not  conclusive 
to  preclude  the  Court  from  entertaining 
the  objections. 

2.  Upon  a  declaration  of  eleven  special 
counts  for  negligence,  and  common 
counts  for  money  paid,  &c.,  an  .arbitrator, 
under  an  order  of  Nisi  Prius,  found  that 
the  plaintiff  had  "good  cause  of  action 
for  23/.  14.V.  lOd  ,"  and  directed  a  ver- 
dict to  be  entered  up  for  that  sum :  Held, 
sufficiently  certain.     Bicas  v.  Jaij.    447 

BAIL. 

Bail  at  the  request  of  the  defendant's  at- 
torney, admissible,  if  not  indemnified  by 
him.     Hunt  v.  Bluquiere.  83 

BAIL  BOND. 

See  Pleading,  Practice. 

BANKER'S  BOOK. 
See  Evidence. 
BANKRUPT. 

-S'ce  Annlitt,  EviDEffCE,  Attoiinkt. 

1.  A  bankrupt  oht.ained  his  certificate  on 
tiic  13th  of  November;  the  same  day  a 
fieri  faci.as  w.as  executed  on  his  goods: 
the    Court    refused    relief  on    motion. 
Ilanmn  v.  Robert  and  Samuel  lilakry.  54, 

2.  A.  kept  cash  with  .M.  and  Co.  i)ankcrs, 
and  accepted  a  bill  drawn  by  one  of  the 
partners  in  tlie  house  of  M.  and  Co.,  and 
indorsed  by  that  partner  to  M.  and  Co., 
who  discounted  it,  and  :d"tcrwards  in- 
dorsed it  for  value  to  S.  Hcfiiire  the  bill 
Ixcame  due,  M.  and  Co.  became  i)ank- 
rupts,  having  funds  in  the  hands  of  S, 
more  than  sufficient  to  jiay  tlie  bill,  and 
having  in  lliiir  hands  money  belonging 
to  A.  When  the  hill  became  due  S. "pre- 
sented it  fiir  |)ayment  to  A.,  who  having 
refused  payment,  S.  paid  iiiniself  the 
amount  out  of  the  funds  of  M.  :uid  Co. 
remaining  in  his  hands,  and  delivered 
the  bill  to  their  assignees:  Held,  in  an 
action  brought  by  the  assignees  against 


544 


INDEX. 


A.,  as  acceptor  of  the  bill,  that  there  had 
been  before  the  bankruptcy  a  mutual 
crcilit  between  the  bankrupts  and  A., 
and  tiiat  the  latter  was  entitled  to  set  ofi" 
agtiinst  the  sum  due  to  the  bankrupts  on 
the  bill,  the  debt  due  to  him  from  M.  and 
Co.  at  the  timeof  their  bankruptcy.  Bol- 
land  and  Others,  .issignccs  of  IV.  Mar.sh 
and  Olfiers,  Bankrupts,  and  also  of  II. 
Fauntleroy,  a  Bankrupt,  v.  /.  Nash.  157 

3.  Where  a  creditor  obtained  judg-ment 
by  nil  dicit  ag-ainst  a  trader  and  thereup- 
on issued  a  fi.  fa.,  under  wliich  the  sheriff 
seized  the  goods  of  the  trader,  who  af- 
terwards, and  before  the  goods  were 
sold,  committed  an  act  of  bankruptcy, 
upon  which  a  commission  issued,  and  he 
was  duly  declared  a  bankrupt,  of  which 
the  sheriff'  had  notice,  but  nevertheless 
sold  the  goods,  and  paid  over  the  pro- 
ceeds to  the  execution-creditor:  Meld, 
that  he  was  not  justified  in  paying  over 
the  money,  and  was  liable  to  be  sued  for 
it  by  the  assignees,  in  an  action  for  mo- 
ney had  and  received. 

Quaere,  Whether  the  sheriff"  was  jus- 
tified in  selling  the  goods  after  notice  of 
tlie  bankruptcy?  Notky  and  Others, 
.Assignees  of  the  Esfcfte  and  Effects  ofElias 
Jarman,  Bankrupt,  v.   Buck,   Esquire. 

178 

4.  Where  a  party,  committed  by  commis- 
sioners of  bankrupt  for  not  answering  to 
their  satisfaction,  wishes  to  be  again 
brought  before  them,  he  must  bear  the 
expense  of  that  proceeding.  Ex  parte 
Baxter.  234 

5.  In  August  1821,  A.,  a  trader,  being  in- 
debted to  B.  and  C,  then  in  partnership, 
but  about  to  separate,  gave  a  warrant  of 
attorney  to  secure  payment  by  instal- 
ments to  B.  alone,  who  knew  that  A.  was 
tlien  insolvent.  In  October,  A.  committ- 
ed an  act  of  bankruptcy;  and  in  Novem- 
ber, at  B.'s  desire,  he  sent  goods  to  tiie 
warehouse  of  B.  &  C.  as  a  further  se- 
curity for  the  debt.  In  December,  B. 
and  C.  dissolved  partnersiiip,  and  the 
former  afterwards  received  from  A.  se- 
veral sums  of  money  on  account  of  the 
warrant  of  attorney,  and  also  sold  the 
goods,  towards  satisfaction  of  the  debt. 
A  commission  of  bankrupt  issued  against 
A.  in  January  182.3,  and  in  November  of 
that  year  B.  died;  Held,  that  A.'s  assign- 
ees miglit  recover  from  C.  the  money 
paid  by  A.  on  the  warrant  of  attorney  by 
an  action  for  money  had  and  received, 
and  the  value  of  tlie  goods  by  an  action 
of  trover.  Bie;f^s  and  Others,  Assignees 
of  Collier,  a  Bankrupt,  v.  Fellows,  sur- 
viving Partner  tf  Tullock.  248 

6.  A  creditor  had  obtained  judgment  by 
default  against  his  debtor,  since  the  stat- 
ute 6  G.  4.  c.  16.  s.  108.,  and  the  goods 
having  been  seized  by  the  sheriff' before, 
but  not  sold  until  after  an  act  of  bank-  ' 


ruptcy  was  committed  by  the  debtor, 
the  Court  refused  to  compel  the  sheriff 
to  pay  over  the  proceeds  of  the  sale  to 
the  assignees  of  the  bankrupt.  In  re 
IVashbourn.  261 

7.  A.  and  Co.,  as  brokers  for  B.,  sold  goods, 
then  in  their  possession,  to  C,  which 
were  paid  for  by  a  bill  drawn  by  C.  and 
accepted  by  D.  C.  ordered  A.  and  Co. 
to  keep  the  goods  in  their  hands,  and 
sell  them  if  they  could  make  a  certain 
profit.  Before  the  bill  became  due  D. 
failed,  and  A.  and  Co.  applied  to  C.  for 
security  for  the  bill;  whereupon  he  gave 
them  an  order  to  sell  the  goods  and  ap- 
ply the  proceeds  in  payment  of  the  bill. 
C.  afterwards,  and  before  the  goods 
were  sold,  became  bankrupt.  A.  and 
Co.  handed  over  the  goods  to  B.  at  his 
request,  but  he  afterwards  returned 
them,  and  after  they  were  returned,  C.'s 
assignees,  having  made  a  demand  of  the 
goods,  brought  trover:  Held,  that  they 
could  not  maintain  it;  for  that  after  the 
order  given  by  C.  to  A.  and  Co.  to  sell 
the  goods  and  apply  the  proceeds  in 
payment  of  the  bill,  they  remained  in 
their  hands  subject  to  that  charge,  be- 
cause A.  and  Co.  must  be  presumed  to 
have  asked  security  as  agents  for  B., 
whose  ratification  of  their  act  for  his  be- 
nefit might  also  be  inferred.  Bailey, 
surviving  Assignee  of  VV,  Ilalliwell,  a 
Bankrupt,  v.  Culvenvell,  Brooks,  and 
Carroll.  261 

8.  A.,  B.,  and  C,  together  with  others, 
were  part-owners  of  a  ship  engaged  in 
the  whale  fishery.  The  usual  mode  of 
managing  the  cargo  was,  that  on  the  ar- 
rival of  the  vessel  at  her  homeward  port, 
the  whalebone  was  taken  into  the  pos- 
session of  B.,  and  sold  by  him,  and  the 
proceeds  were  applied  towards  the  dis- 
charge of  the  expenses  of  the  ship. 
The  blubber  was  deposited  in  a  ware- 
house rented  of  C.  by  the  owners  of  the 
ship,  and  the  oil  produced  from  it  was 
then  put  into  casks,  each  owner's  share 
being  weighed  out,  and  placed  separate- 
ly in  the  warehouse,  in  casks  marked 
with  his  initials.  After  the  division,  the 
practice  was  for  the  warehouseman  to 
deliver  to  the  order  of  each  part-owner 
his  share  of  the  oil,  unless  notice  was 
given  by  the  ship's  husband  that  the 
part-owner's  share  of  the  disbursemefits 
liad  not  been  paid.  In  that  case,  the 
warehouseman  used  to  detain  the  oil  till 
the  ship's  husband's  demand  had  been 
satisfied.  The  ship  having  arrived  from 
her  voyage  in  1825,  the  al)ove  course 
was  followed.  The  share  weighed  out 
and  set  apart  for  A.  was  twenty-nine 
tons,  which  was  stowed  in  the  warehouse 
in  casks,  which  had  A.'s  initials  put  on 
them.  In  Januaiy  1826,  A.  became  bank- 
nipt.     Twenty  tons  of  the  oil  had  been 


INDEX. 


545 


delivered  to  A.  before  his  bankruptcy; 
the  remaining  nine  tons  remained  in  the 
warehouse  at  the  time  of  his  bankrupt- 
cy. In  January  1826,  the  warehouse- 
man had  orders  from  C,  the  ship's  luis- 
band,  not  to  dehver  to  A.  the  remaining- 
oil,  as  his  share  of  the  disbursements  of 
the  ship  had  not  been  paid:  Held,  in  an 
action  of  trover  brought  by  the  assign- 
ees of  A.  against  C,  for  the  residue  of 
A.'s  oil,  that  the  other  part-owners,  had 
originally  a  lien  on  it  for  his  share  of  the 
disbursements  of  the  ship,  and  that  this 
rigiit  was  not  divested  by  the  separation 
of  A.'s  share  from  tlie  residue,  and  plac- 
ing it  in  casks  marked  with  his  name. 
Iloldemess  andJiwther,  Jlssignees  of  Fox- 
ion ,  V.  Shackeb.  315 

9.  Where  tlie  assignees  of  a  bankrupt  en- 
ter the  premises  of  a  third  person  to 
seize  goods,  which  were  the  property 
of  the  bankrupt,  it  is  not  necessary  tlud 
an  action  against  them  should  bebrouglit 
within  tiiree  months  after  the  fact  com- 
mitted; the  act  of  the  assignees  not  be- 
ing done  "in  pursuance  of  the  statute," 
within  the  meaning  of  the  6  G.  4.  c.  16. 
s.  44.     Daniel  Erl^c  v.  Parker.  328 

10.  Judgment  w;i.s  entered  up  on  a  war- 
rant of  attorney  given  by  two  joint  trad- 
ers, and  a  <i.  fa.  issued,  returnable  on  tlie 
2d  of  May.  On  tile  1st  of  that  montli 
tlie  sherifi"'s  officer  received  from  the 
defendants  the  money  directed  to  be  le- 
vied. On  tile  2d  of  May  one  of  them 
committed  an  act  of  bankruptcy,  and 
the  otlier  on  the  5th.  On  the  11th  a 
commission  of  bankrupt  issued,  and  on 
the  19th  tiic  slicrifT  jiaid  over  tlic  mo- 
ney to  the  execution-creditor.  Iti  an  ac- 
tion liy  tiic  assignees;  Held,  tliat  he  was 
entitled  to  retain  it,  not  lieing  creditor 
having  a  security  at  the  time  of  tiie  bank- 
ruptcy .  Miirlaiid  and  Jlnotln r,  Jlasii^iues 
of  Dickhid  and  H'urnirk,  Bankrupts,  v. 
I'e/lal/.  3,12 

11.  The  Court  of  C.  P.  lias  not  autliority 
under  tlic  G  (i.4.  c.  10.  s.  1)6.  to  compel 
parties  to  enrol  the  proceedings  un(l<!r 
a  com  mission  of  bankrupt.  'I'he  ajipii- 
cation  must  lie  m.idc  to  the  Court  of 
Chancery.     Johmmn  v.  (i'dlilt.  344 

12.  Bankruptcy  and  rcili(icatc  are  no  bar 
to  an  action  in  tort  against  a  broker  for 
selling  out  plaintitl's  stock  contrary  to 

,  orders.      Piirkrr  v.   f'ro/r.  .]"! 

13.  By  charter-party  H.  hired  a  sjiip  to 
convey  a  cargo  to  Jlajti,  and  engaged 
to  find  a  cargo  for  the  homeward  voy- 
age. On  the  ship's  arrival  at  llayli,  I?, 
assigned  the  cargo  to  C.  ns  a  security 
for  advances  made  by  him.  The  hire 
of  the  s!iip  not  liaving  been  p.aid,  dc- 
fendant.s,  the  owners,  under  the  judg- 
ment of  a  court  at>  Ilayti,  attached  the 
cargo  in  the  liand.n  of  (.".  to  dischargtr 
defendants'  claim  for  the  hire.     13.  iiav- 

VOI..    XV. 


ing  declined  to  find  a  cargo  for  the 
homeward  voyage,  the  captain  procured 
one  for  defendants,  who  received  the 
freight  on  its  arrival  in  London. 

E.  having  subsequently  to  the  said  as- 
signment, become  bankrupt:  Held,  that 
his  assignees  could  not  recover  from  de- 
fendants tlie  proceeds  of  the  cargo  at- 
tached at  Hayti,  or  of  the  homeward 
freight.  Ki/mer  and  Other.';,  Jlssignees 
of  J.   O'Brien,  v.  Larkin  and  Jlnother. 

2,71 

14.  A  payment  made  in  June  1825  by  a 
debtor,  bona  fide  Avitliout  intention  of 
fraudulent  preference,  eight  days  before 
a  commission  of  bankrupt  was  issued 
against  him,  Held  to  be  protected  under 
the  eighty-second  section  of  6  G.  4.  c.  16, 

The  debtor,  a  prisoner,  went,  eight 
days  before  a  commission  of  bankrupt 
was  sued  out  against  him,  to  afire-office, 
to  receive  money,  ]iayablc  to  him  in 
respect  of  a  loss  by  fire;  a  creditor,  for 
labour  done,  who  knew  the  time  when 
the  money  was  to  be  paid,  without  any 
intimation  from  the  debtor,  met  him  at 
the  office,  and  obtained  out  of  the  sum 
so  received,  payment  of  his  own  debt, 
not  knowing  that  his  debtor  was  a  pri- 
soner or  insolvent,  a  jury  having  nega- 
tived fraud.  Held,  that  this  was  not  a 
fraudulent  preference  by  the  debtor. 
Chxirehill  and  Jlnother,  Assignees  ofCado- 
gan,  a  Bankrupt,  v.  Crease.  409 

15.  A  cliariot  was  built  to  plaintiff's  order, 
and  paid  for  by  him:  when  finished  in 
other  respects,  plaintlfi'  ordered  a  front 
scat  to  be  added;  but  the  builder  being 
slow  in  making  this  addition,  jilaintifir 
sent  for  the  cliariot  repeatedly,  and  the 
builder  promised  to  deliver  it.  IMaintlll" 
being  ;ifterwards  dissatisfied,  ordered  the 
ehiiriot  to  be  sold,  and  whlk;  it  was,  ac- 
cording to  the  custom  of  the  trade,  stand- 
ing in  the  builder's  warehouse  for  that 
purpose,  the  front  seat  not  having  been 
:idded,  the  builder  became  a  b;inkrupt, 
anil  his  ;i8signee  seized  the  chariot:  more 
than  three  months  afterwards  the  pl;iin- 
tiirconnnenccd  his  action: 

Held,  fir.st,  thiit  tlie  plaintiff  had  suffi- 
cient  j)roperty  to  m:iintain  trover;  se- 
condly, that  the  cliariot  did  not  p  iss  to 
the  assignee  as  being  in  the  or<ler  and 
disposition  of  the  bankrupt  with  the  con- 
sent of  tlie  owner;  and,  thirdly,  that  the 
assignee  was  not  within  the  protection 
of  the  forty-fourth  section  of  (i  (J.  4.  c. 
If).,  wiiicli  limits  actions  to  three  months 
after  the  fact  committi:d.  VuiTuthrr.iv. 
I'aync,  Jissigiuc  of  7'honipson,  n  Bank- 
rupt. 447 
IG.  The  bankrupt  act,  fi  O.  4.  c.  16.  s.  82., 
is  retrospective. 

Tliercf<ne,  where  the  bankruptcy  took 
pl.ice  .lune  26.  1822,  and  the  bankrupt 
jiaid  the  defendant,  who  knew  of  his  in- 


546 


INDEX. 


Bolvency.aaumof  money  Augtist4, 1822, 
and  a  commission  was  sued  out  against 
the  bankrupt  in  May  1823:  Hold,  that 
the  assignees  could  not  subsequently  to 
the  time  when  tlic  6  G.  4.  c.  16.  came  in- 
to operation,  sue  the  defendant  for  mo- 
ne)'  had  and  received.  Tcrrington,  ^is- 
si'gnee  of  Piillan,  a  Batikrupt,  v.  Ilar- 
greaves  and  Others.  515 

BAPTISM. 

See  Evidence. 

BARON  AND  FEME. 

1.  Payment  of  money  into  court  upon  a 
general  indebitatus  assumpsit  is  no  ad- 
mission of  a  contract  beyond  the  amount 
of  the  sum  paid  in. 

2.  A  husband,  Mho  supplies  his  wife 
with  necessaries  in  her  degree,  is  not 
liable  for  debts  contracted  by  her  witli- 
out  his  previous  authority  or  subsequent 
sanction.     Seaton  v.  Benedict.  354 

2.  AVhere  a  plaintiff  furnished  defendant's 
wife  with  articles  of  dress,  which  were 
rendered  unnecessary  by  the  defend- 
ant's having  supplied  her  wardrobe  am- 
ply, and  in  an  action  for  the  price  of  the 
articles  (18/.  5s.  6d.),  the  jury  found  a 
verdict  for  plaintiff,  damages  lO.-;.,  the 
Judge  certified  to  deprive  him  of  costs. 
Seaton  v.  Benedict.  411 

3.  A  husband  separated  from  his  wife  by  a 
divorce  a  mensa  et  thoro,  for  adultery 
on  his  part,  with  a  decree  of  alimony, 
is  liable  for  necessaries  supplied  to  the 
wife,  if  he  omit  to  pay  the  alimony. 

2.  Furniture  of  a  house  held  to  be 
necessaries  for  a  female,  to  whom  the 
Court  had  decreed  380/.  a  year  alimony. 
Hunt  V.  Be  Blaquiere.  550 

BERWICK  UPON  TWEED. 

See  Rate. 

BILL  OF  EXCHANGE. 

(S'ee  Payment.  Bankrupt. 

1 .  A  bill  payable  to  the  order  of  the  drawer 
having  been  dishonoured  by  the  accept- 
or and  paid  by  the  drawer  when  due: 
Held,  that  the  drawer  might  indorse  it 
over  a  year  and  a  half  afterwards,  and 
that  his  indorsee  might  recover  against 
the  acceptor.     Hubbard  v., Tuchson.     12 

2.  Defendant  and  M.,  partners,  having  ob- 
tained leave  to  overdraw  tlicir  bankers, 
the  plaintiffs,  M.  gave  them  a  promis- 
sory note  for  2000/.,  as  a  security  for  ad- 
vances, and  defendant  thereupon  gave 
M.  a  note  for  1000/.,  payable  to  order. 
Plaintiffs  advanced  1300/.  to  M.  and  de- 
fendant, and  two  years  after,  being  in 
possession  of  defendant's  note  for  1000/. 
by  transfer  from  M.,  sued  defendant. 
It  did  not  appear  that  they  had  given  M. 
any  consideration  for  it,  or  tliat  they 
had  notice  of  the  circumstances  under 
which  defendant  gavv  : .  . 


Held,  they  were  entitled  to  recover. 
Jlvyioood  and  Othei-s,  v.  T.  W.  IVatson. 

55 

3.  A  bill  was  dishonoured  on  Saturday  in  a 
place  where  the  post  went  out  at  half 
after  nine  in  the  morning:  Held,  that  it 
was  sufficient  notice  of  dishonour  to 
send  a  letter  by  the  following  Tuesday 
morning's  post. 

The  holder's  clerk,  who  copied  the 
letter  containing  the  notice,  Said,  that 
the  letter  was  put  into  the  post  on  the 
Tuesday  morning,  but  he  had  no  recol- 
lection whether  it  was  done  by  himself 
or  another  clerk: 

Held,  not  sufficient  evidence  of  put- 
ing  into  the  post.  Hawkes  and  Others, 
Jlssignces  of  Day  and  Others,  Bankrupts, 
V.  Salter.  125 

4.  If  the  executor  of  the  acceptor  of  a  bill 
of  exchange,  orally  promise  to  pay  the 
holder  out  of  her  own  estate,  provided 
he  forbear  to  sue,  and  the  holder  for- 
bear to  sue  in  consequence;  the  promise 
being  void,  the  drawer  of  the  bill  is  not 
discharged  by  the  holder's  having  pro- 
mised to  give  time,  and  having  delayed 
to  sue  under  such  circumstances.  Phil- 
pot  V.  Briant.  126 

5.  To  an  action  upon  a  joint  and  several  pro- 
missory note  of  A.  and  B.,  the  latterbe- 
ing  a  mere  surety,  brought  by  payee 
against  the  administrator  of  B.,  the  de- 
fendant pleaded  that  the  cause  of  action 
did  not  accrue  within  six  years,  upon 
which  the  plaintiff  took  issue.  The 
plaintiff  proved,  that  within  six  years, 
and  during  the  lifetime  of  B.,  A.  made 
a  payment  on  account  of  the  note.  B. 
afterwards  died:  Held,  that  such  pay- 
ment operated  as  a  new  promise  by  B. 
to  pay,  according  to  the  nature  of  the 
instrument,  and  that  his  administrator 
was  liable  on  the  note.  R.  B.  Burleigh 
and  Others,  Executors  and  Executrix  of 
Robert  Burleigh,  deceased,  v.  E.  Siott, 
Administratrix  oJfT.  Stott,  deceased.  151 

6.  A  member  of  a  joint-stock  company  was 
employed  by  the  company  as  their  agent 
to  sell  goods  for  them,  and  received  a 
commission  of  two  per  cent,  for  his  trou- 
ble, and  one  per  cent,  del  credere  for 
guaranteeing  the  purchaser.  Having 
sold  goods  on  account  of  the  company, 
he  drew  on  the  purchaser  a  bill  of  ex- 
change, payable  to  his  the  drawer's  own 
order,  and  after  it  had  been  accepted 
he  indorsed  it  to  the  actuary  of  the  com- 
pany, and  the  latter  indorsed  it  to  an- 
other member,  who  was  the  managing 
director,  and  who  purchased  goods  for 
the  company:  the  company  were  then 
indebted  to  him  in  a  larger  amount  than 
tlie  sum  mentioned  in  the  bill.  The  ac- 
ceptor having  become  insolvent  before 
tlie  bill  became  due,  the  drawer  re- 
ceived from  him  ten  shillings  in  the 
pound  upon  the  amount  of  the  bill  by 


INDEX. 


547 


way  of  composition:  Held,  first,  that 
the  indorsee  being  a  member  of  the 
company  could  not  sue  the  drawer  on 
the  bill,  inasmuch  as  it  was  drawn  by 
the  latter  on  account  of  tlie  company, 
and  that  he  could  not  recover  the  sum 
received  by  the  drawer  on  the  bill,  be- 
cause that  money  must  be  taken  to  have 
been  received  by  him  in  his  character  of 
a  member  of  the  compan)',  and  not  on 
his  own  account.      Teague  v.  Hubbard. 

234 

7.  The  indorsee  of  a  bill  of  exchange,  dis- 
honoured by  tl\e  acceptor,  being  ignor- 
ant of  the  place  of  residence  of  qne  of 
the  indorsers,  employed  an  attorney  to 
give  notice  to  him  and  the  other  prior 
indorsers;  the  attorney,  after  inquiry, 
having  received  information  of  this  in- 
dorser's  place  of  residence  on  the  fol- 
lowing day,  consulted  his  client,  and  on 
the  third  day  sent  notice  of  the  dishonour 
of  the  bill:  Held,  that  the  notice  was 
sufficient. 

The  declaration  averred  that  the  de- 
fendant had  notice  of  the  dishonour: 
Held,  that  allegation  was  satisfied  by 
proof,  that  he  had  notice  as  soon  as  it 
could  reasonably  be  given,  and  that  it 
was  unnecessary,  therefore,  to  state  in 
the  declaration  the  special  circumstances 
which  rendered  valid  tlie  notice  given 
at  a  later  period  than  in  ordinary  cases 
would  be  sufficient.     Firth  v.  Thnish. 

587 

8.  In  an  action  by  the  indorsee  against  the 
drawer  of  a  bill,  it  appeared  by  tlie 
plaintiff's  case  that  he  had  received  it 
from  the  acceptor  in  discharge  of  u  debt 
due  from  him.  For  the  defendant,  it 
was  stated  that  the  bill  was  accepted  in 
disciiargc  of  part  of  a  debt  due  from 
the  acceptor  to  the  drawer;  that  it  was 
indorsed  and  delivered  to  tlie  acceptor, 
in  order  that  he  niiglit  gctit  discounted, 
and  tliat  lie  delivered  it  to  the  plaintiff, 
upon  condition,  that  if  lie  ])r()cure(l 
cash  for  it,  he  might  retain  out  of  it  the 
amount  of  the  debt  due  lo  l>ini  from  tlie 
acceptor,  btit that  lie  never  did  get  cahh 
for  the  bill:  Held,  tli:it  the  acceptor 
could  not  be  examined  to  [)rove  these 
farts;  for  although  he  was  uninterested 
as  to  the  amount  sought  lo  he  recover- 
ed on  the  hill,  he  w:is  interested  as  to 
the  costs  against  which  he  would  liavi- 
to  indemnify  the  defcnrlant,  if  the  jihiin- 
tiff    obtained    a   verdict.     Ednwudu  v. 

9.  A  hill  w.as  drawn  by  A.  upon  H.  for  the 
accommodatifin  of  (;.,  who  iiidr)i-sed  it 
for  value  to  I).  Neither  A.  nor  V,.  h;id 
any  eflccts  in  the  haiuLs  of  U.  'I  he  hill 
was  dishonoured  by  H.;  Held,  that  the 
drawer  was  entitled  to  notice.  Nvrinn 
v.   I'irkrrinir.  ."14 

10.  A  billof  exchange  drawn  in  America  on 


a  house  in  London,  payable  to  order, 
was  indorsed  by  the  payee  generally  to 
A.,  and  by  him  in  these  words:  *'  Pay  to 
B.  or  his  order  for  my  use."  B.  appli- 
ed to  his  bankers  to  discount  the  bill, 
and  they,  without  making  any  enquiiy, 
did  so,  and  applied  the  proceeds  to  the 
use  of  B. :  Held,  that  the  indorsement 
was  restrictive;  that  the  property  in  the 
bill  remained  in  A.,  and  that  he  was  en- 
titled to  recover  the  amount  of  the  bill 
from  the  bankers.  Sigourney  v.  Lloyd 
and  Others.  319,  527 

11.  Defendant  accepted  a  bill  of  exchange 
drawn  by  C.,  who  indorsed  it  to  his 
bankers;  they  entered  it  on  the  credit 
side  of  C.'s  account,  but  the  bill  having 
been  dishonoured,  entered  it  afterwards 
on  the  debit  side.  A  few  days  after  this 
dishonour,  defendant  paid  to  C.  the 
amount  of  the  bill,  but  omitted  to  take 
it  out  of  the  banker's  hands. 

C.  subsequently  paid  in  to  the  banker 
on  his  general  account  more  tlian  enough 
to  cover  all  the  items  of  llie  account 
preceding  the  bill  item,  and  that  item 
also,  and  the  bankers,  for  a  space  of 
three  years,  treated  the  bill  as  paid, 
they  then  sued  defendant  on  his  accept- 
ance: 

Held,  that  he  was  not  liable.  Field 
and  Others  v.  Carr.  348 

12.  A  bill  of  exchange,  drawn  in  America 
on  a  house  in  London,  payable  to  order, 
was  indorsed  by  the  payee  generally  to 
A.;  and  by  him  in  these  words,  "Pay 
to  B.  or  his  order  for  my  use."  B.  a])- 
plied  to  his  bankers  to  discount  the  bill, 
and  they,  without  making  any  enc[uiry, 
did  so,  and  applied  the  proceeds  to  the 
use  of  B.:  Held,  that  the  indorsement 
w;is  restrictive;  that  the  property  in  the 
hill  i-emained  in  A.;  and  that  he  was  en- 
tilled  to  recover  the  amount  from  the 
blinkers.  Lloyd  and  Others  v.  ISigour- 
ney.  527 

HOND. 

See  SlMO.VT.      ASSIMPSIT. 

1 .  In  :ui  action  upon  a  bond  given  to  hankers, 
conditioned  lor  the  fidelity  of  a  clerk, 
entries  of  the  rccei])!  of  sums  of  money 
ni;ide  by  the  clerk  in  books  kept  i)y  him 
in  the  iliscliarge  of  his  duly  as  clerk,  arc, 
after  his  (lr:itli,  evidence  against  his 
sureties  <jf  the  fact  of  the  receipt  ofthu 
money.  If'hitnush  and  Jl  not  her  j  v.//. 
(i(()rgr  and  Ji.  (ilgord.  295 

2.  The  condition  of  a  bond  recited  that  A. 
was  indebted  lo  B.  in  various  sums  of 
nioiier,  which  were  all  slated  in  jiounds 
sterling,  and  inoney  of  a  siii.iller  deno- 
mination, and  that  the  boiul  was  given 
to  secure  ]):iymcnt  of  those  sums,  fn 
the  obligatory  pari  of  the  bond  the  word 
jwund-1   was   omitleU;  it    merely  blulcd 


548 


INDEX, 


lliat  llic  obli.i^or  becunio  bouml  ill  7700, 
without  stuting'  what  di-scription  of  mo- 
iifv:  llcKl,  that  from  the  coiulitioii  tlie 
intent  manifestly  was,  that  the  oblig'or 
sliouUl  become  bound  in  7700  pmtnds, 
and  tliat  the  word  pounds  might  there- 
fore be  supplied.  //.  B.  Cnks,  Admin- 
istrator of  C.  Coles,  V.  Iliihnc.  299 

BOSTON  ACT. 

See  EvinEucE. 

BRIDGE. 
See  Indictmext. 

BRITISH  MUSEUM. 
A  part  of  a  work,  to  which  there  were 
twenty-six  subscribers,  and  of  wliich 
only  tiiirty  copies  were  printed, — pub- 
lished at  intervals  of  several  years,  at 
an  expense  cxcccdintif  the  sum  to  be  ob- 
tained by  the  price  of  the  copies,  and 
which  cx]5ense  was  defrayed  by  a  testa- 
mcntu-y  donation,  was  holden  not  to  be 
a  book  demandable  by  the  Rritish  Mu- 
seum under  54-  G  3.  c.  156.  Trustees 
of  t/i£  British  Museum  v.  Faijne  and 
Foss.  69 

BTIOKEH. 
See  Trover. 

BUILDING  ACT. 

Defendant,  who  had  a  lease  of  land  from 
N.,  entered  into  an  agreement  with  G., 
who  was  to  build  liouses,  anil  pay  de- 
fendant a  rent  of  2(J/.  a  year.  (i.  then 
emploved  defendant  to  build  the  houses. 

Held,  that  defendant  was  liable  to  con- 
tribute to  a  party-wall  to  which  the 
houses  were  attached. 

Held,  also,  that  the  owner  of  the  par- 
ty-wall was  not  confined  to  ten  days  to 
give  liis  notice,  l)ut,  there  being-  no  ad- 
joining house  when  it  was  built,  miglit 
give  the  notice  in  reasonable  time  after 
the  adjoining  houses  were  attached. 
Collins  V.  Wilson.  70 

BURIAL. 

AVherc  a  rector  granted  toA.  B.  by  parol, 
leave  to  make  a  vault  in  the  parish 
church,  and  to  bury  a  certain  corpse 
there,  and  that  he  should  have  the  ex- 
clusive use  of  the  vault ;  and  afterwards, 
without  the  leave  of  A.  B.,  opened  the 
vault,  and  buried  another  person  there  : 
Held,  that  no  action  could  be  maintained 
against  him  for  so  doing  ;  for  that  if  the 
rector  had  power  to  grant  the  exclusive 
use  of  a  vault,  he  could  not  do  it  by 
parol. 

Semble,  That  a  rector  cannot  grant  a 
vault  in  the  church,  but  only  leave  to 
bury  there  in  each  particular  instance. 
Bryan  v.  tVhiitkr,  Clerh.  219 


BYE-LAW. 

1.  In  a  company  constituted  by  letters  pa- 
tent, witiv  power  to  make  reasonable 
bye-laws,  a  l)yc-law  for  the  steward  to 
provide  a  dinner  for  certain  members  of 
the  com]5any  on  Lord  Mayor's  day,  with 
an  allowance  for  doing  so,  or  to  pay  a 
fine  of  20/.  or  excuse  himself  by  swear- 
ing he  is  not  worth  300/.,  is  a  bad  bye- 
law.     At  all  events, 

2.  The  allowance  is  a  condition  pre- 
cedent, and  ought  to  be  averred.  Car- 
ter and  others  \.  Sanderson,  371 

CARRIER. 

1.  rlaintiR"  having  been  imposed  upon  by 
a  swindler,  consigned  a  box  at  Birming- 
ham by  the  defendants,  as  common  car- 
riers, to  J.  West,  27,  Great  Winchester 
Street,  London.  The  defendants  found 
tliat  no  such  person  resided  there  ;  but 
upon  receiving  a  letter  signed  J.  West, 
requesting  tliat  the  box  might  be  for- 
warded to  a  public  house  at  St.  Alban's, 
they  delivered  it  there  to  a  person  call- 
ing'himsclf  West,  who  shewed  that  he 
liad  a  knowledge  of  the  contents  of  the 
box  :  that  person  having  disappeared, 
and  the  box  having  been  originally  ob- 
tained of  the  phiintift"  by  fraud.  Held, 
that  the  defendants  were  liable  to  him 
in  an  action  of  trover.  Gaselee  J.  dis- 
sentiente. 

Held,  also,  that  it  was  properly  left 
to  the-  jury  to  say,  whether  the  defend- 
ants had  d'elivered  the  box  according  to 
the  due  covu-se  of  their  business  as  car- 
riers. Stephenson  v.  Hart  and  Water- 
house.  47 
2.  A  notice  that  the  proprietor  of  a  gen- 
eral coach-office  will  not  be  responsible 
for  the  carriage  of  parcels  of  more  than 
51.  value,  unless  entered  as  such,  will 
not  avail  the  proprietor  of  a  coach  who 
takes  a  parcel  from  the  office,  unless  it 
be  otherwise  shewn  that  he  is  connect- 
ed with  tlie  office. 

The  carrier's  agent  telling  the  fe- 
male ser\ant  of  the  owner  of  a  parcel 
above  that  value,  that  it  ought  to  be  in- 
sured. Held,  not  a  sufficient  notice  of 
the  limitation  of  the  carrier's  responsi- 
bilitv.  Marklin  v.  Waterhousc,  Clench, 
und'L.  0.  Iteeks.  421 

Seinlde,  that  where  carriers  run  a 
coach  from  A.  to  B.  and  back,  notice 
that  they  limit  their  responsibility  on 
the  carriage  of  parcels  from  A.  to  B.,  is 
notice  that  they  limit  it  likewise  from 
B.  to  A.  Biky  and  others  v.  Home  and 
others.  422 

CERTIFICATE. 
.See  Bankrupt. 
CERTIORARI. 
Sec  IxncTMEsr.   FuAtrrtE. 


INDEX. 


549 


CHALLENGE. 
See  JrHOR. 

CHAMPERTY. 

An  agreement  between  the  seller  and 
purchaser  of  an  estate,  that  the  pur- 
chaser, bearing  the  expense  of  certain 
suits  commenced  by  the  seller  against 
an  occupier  for  arrears  of  rent,  should 
have  tlie  rent  to  be  so  recovered,  and 
any  sum  tliat  could  be  recovered  for  di- 
lapidations, and  that  the  purchaser,  bear- 
ing the  expenses,  might  use  the  seller's 
name  in  actions  he  might  think  fit  to 
commence  against  the  occupier  for  ar- 
rears of  rent  or  dilapidations,  is  not 
void,  as  savouring  of  champerty.  Wil- 
liams V.  Protheroe.  456 

CHARTER. 

See  ConpoRATiox. 

CHARTER-PARTY. 

>Vliere  the  owner  of  a  ship,  by  an  instru- 
ment called  a  cliarter  part  ,  appointed 
G.  B.  to  tlie  command,  and  agreed  that 
(the  sliip  being  tight,  &c.  and  manned 
with  thirty-five  men)  G.  B.  should  be  at 
liberty  to  receive  on  board  a  cargo  of 
lawful  goods  (reserving  100  tons  lo  be 
laden  for  account  of  the  owner),  and 
proceed  therewith  to  Calcutta,  and  there 
re-load  the  ship  with  a  cargo  of  East  In- 
dia produce,  and  return  therewith  to 
London,  and  upon  her  arrival  there  and 
discharge,  the  intended  voyage  and  ser- 
vice should  end.  And  the  owner  fur- 
llier  agi"eed,  that  the  complement  of 
thirty-five  men  shouhl,  if  possible,  be 
kept  up;  that  lie  would  sui)ply  the  ship 
with  stores,  and  that  she  might  be  re- 
tained in  the  said  service  twelve  months, 
or  so  much  longer  as  was  necessary  to 
complete  the  voyage.  In  consideration 
of  which  G.  B.  agrectl  lo  take  the  com- 
niand,  and  receive  the  Hhi|)  into  his  ser- 
vice for  twelve  months  certaiti,  and 
such  longer  time  as  might  be  necessary 
lo  c  )mi)lelc  the  voyage,  and  pay  to  the 
owner  for  the  use  and  hire  of  the  shij) 
after  the  rate  o(25».  per  ton  per  month, 
of  which  1000/.  was  lo  be  paid  on  the 
executi<m  of  the  charter-par*y,  and 
2000/.  by  two  approved  bilU  on  Calcul- 
l«,  one  of  which  was  tr»  be  payable  one 
month,  and  the  other  two  months  after 
her  arrival  there:  the  residue  to  be  paid 
or  secured  to  the  satisfaction  of  the 
owner  on  the  arrival  of  the  ship  at  Lon- 
<lon,  and  previous  to  commencing  the 
discharge  of  her  homewanl  cargo. 
(O.-rtain  other  stipulations  for  |)uyment 
ot  freight,  if  the  ship  were  detained  it) 
India,  wcie  then  made.)  And  it  was 
fiMlhcr  agi'ced,  that  (..  H.  should  remit 
all  freight-bills  for  the  homeward  cargo 
to  \\.  B.  and  C'j.  in  London,  w  ho  ihould 


hold  them  as  joint  trustees  for  the  own- 
er and  G.  B.;  that  they  should  first  be 
applied  to  payment  of  the  balance  of 
freight  due  from  G.  B.,  and  the  surplus, 
if  any,  be  handed  over  to  him.  It  was 
then  provided,  that  the  owner  should 
have  an  agent  on  board,  who  was  to 
have  the  sole  management  of  the  ship's 
stores,  and  power  to  displace  G.  B.  for 
breach  of  any  covenant  in  the  charter- 
party,  and  appoint  another  commander. 
C.  and  Co.  in  Calcutta,  having  know- 
ledge of  this  instrument,  shipped  goods 
on  board  the  vessel  for  London,  which 
were  never  delivered  there :  Held,  that 
they  might  recover  against  the  owner, 
notwithstanding  the  agreement  between 
him  and  G.  B.,  for  that  it  was  in  the 
nature  of  a  special  appointment  of  the 
latter  to  the  command,  and  was  not  a 
charter  of  the  vessel  to  him.  Colvin  and 
Others  v.  A^eiuberri/  and  Benson.       179 

CHOSE  IN  ACTION. 
The  general  rule  of  law  is,  that  a  debt 
cannot  be  assigned.  The  exception  to 
that  rule  is,  tiiat  where  there  is  a  defined 
and  ascertained  debt  due  from  A.  to  B. 
and  a  debt  to  the  same  or  a  larger 
amount  due  from  C.  to  A.,  and  the  three 
agree  that  C.  siiall  be  B.'s  debtorinstead 
ofA.,  andC.  promises  to  pay  B.,  the  lat- 
ter  may  maintain  an  action  against  C. 
But  in  such  action,  it  is  incumbent  on 
the  plaintiff  to  show,  that  at  the  time 
when  C.  promised  to  pay.  B.  there  was 
an  ascertained  debt  due  from  A.  to  B. 
Faiilic  V.  Denton  and  Barker.  246 

CHUUCII. 
See  BuniAL. 

CHURCHWARDEN. 

See  Ma.M)amus. 

COLLECTOR. 
See  Distress. 

A  local  act  for  enlarging,  cleansing,  pav- 
ing,  and  lighting  the  streets,  &.C.  in  the 
ciiy  of  London,  authorized  the  commis- 
sioners 10  order  a  rale  in  the  several 
Wards  of  the  city  of  London  to  be  made 
by  the  aldermen  and  the  major  part  of 
ihe  common  councilmcn,  upon  all  per- 
sons who  inhabited,  held,  occupied,  pos- 
sessed, or  enjoyed  any  land,  house,  shop, 
warehouse,  fee.  or  other  tenement  or 
hereditament  within  the  said  several 
wards,  and  who  by  the  laws  then  in  be- 
ing should  be  liable  lo  l)c  ralcil  lothc  re- 
lief of  the  poor.  By  another  clause  it  was 
made  lawfid  for  the  alderman  and  the 
major  |)arl  of  the  common  coinjcilmen  of 
each  ward,  at  a  tourl  of  wardmote  to  be 
holden  for  the  choice  of  ward  otficerp, 
lo  return  If)  the  wardmote  the  names 
and  placcsof  abode  of  a  competent  num- 
ber   ol'  subbiantial  inhabilants  of  such 


330 


INDEX. 


ward,  of  whom  so  many  nsthe  alderman, 
&c.  slunild  tliink  fit  and  direct,  not  ex- 
ceeding-liulttiie  number  of  persons  so 
returned,  should  be  chosen  at  the  said 
wardmote  to  be  collectors  of  the  said 
rates  and  assessments  for  one  year:  Held, 
that  the  word  inhabitant,  in  the  latter 
clause,  meant  resiant,  and,  tlierefore, 
that  one  of  the  several  partners  in  a 
commercial  establishment, who  occupied 
a  house  for  the  purpose  of  his  business 
in  the  ward,  but  who  resided  elsewhere, 
was  not  liable  to  serve  the  office  of  col- 
lector of  the  rates.  Donne  v.  Alavtijv.  154 

COLONIAL  COURT. 

See  Debt. 

COMMENCEMENT  OF  ACTION. 
See  Evidence.     Pleading. 

COMMISSIONERS  OF  BANKRUPT. 

See  Bankrupt. 

By  the  6G.  4.  c.  16.  s.  33.  commissioners 
of  bankrupt  are  authorized,  by  writing 
under  their  hands,  to  summon  before 
tliem  certain  persons;  and  if  any  such 
persons  so  summoned  shall  not  come  be- 
fore them  at  the  time  appointed,  having 
no  lawful  impediment  made  known  to 
them  at  the  time  of  their  meeting,  and 
allowed  by  them,  it  shall  be  lawful  for 
them,  by  warrant  under  their  hands  and 
seals,  to  authorize  the  person  therein 
named  to  apprehend  such  person,  and 
bring  him  before  them  to  be  examined: 
Held,  that  in  order  to  justify  the  com- 
missioners in  issuing  their  warrant  for 
the  apprehension  of  a  witness  to  whom 
they  iiad  directed  a  summons,  it  was  ne- 
cessary tliat  a  reasonable  time  should 
intervene  between  the  service  of  the 
summons  and  the  time  when  the  witness 
w  as  thereby  required  to  attend,  and  that 
the  question,  whether  the  service  of  the 
summons  was  in  that  respect  reasonable 
or  not,  was  a  question  of  fact  to  be  sub- 
mitted to  a  jury.  Semble,  That  the 
commissioners  are  not  bound  to  have  in- 
formation on  oath  of  the  service  of  the 
summons  before  they  issue  their  war- 
rant, but  that  it  is  sufficient  if  tlie  sum- 
mons be  actually  served.  Groocochv. 
Cooper  and  Others,  198 

COMMISSIONERS  OF  SEWERS. 

Where  commissioners  of  sewers  acting 
bona  fide  for  tiie  benefit  of  tlie  levels  for 
which  they  were  appointed,  erected 
certain  defences  against  the  inroads  of 
the  sea,  which  caused  it  to  flow  with 
greater  violence  against,  and  injure  tiie 
adjoining  land  not  within  the  levels: 
Held,' that  they  could  not  be  compelled 
to  make  compensation  to  the  owner  of 
the  land,  or  to  erect  new  works  for  his 
protection;  for  that  all  owners  of  land 
exposed  to  the  inroads  of  the  sea,  or 


commissioners  of  sewers  acting  for  a 
number  of  land-owners,  have  a  right  to 
erect  such  works  as  are  necessary  for 
their  own  protection,even  although  they 
may  be  prejudicial  to  others.  The  King 
v.  The  Commissioners  of  Seiuers  for  the 
Levels  of  Pag-ham,  and  certain  other 
Places  in  the  County  of  Sussex.  237 

COMMITMENT. 

See  Evidence. 

COMPOSITION  DEED. 

l.PlaintiflPhad  refused  to  sign  an  agreement 
to  receive  of  his  debtor  a  composition  of 
lOs.  in  the  pound;  but  the  debtor's  bro- 
ther offering  to  supply  him  with  coal  to 
the  amount  of  the  other  10s.,  he  signed 
the  composition  agreement. 

The  other  creditors  knew  nothing  of 
the  coal  transaction. 

Plaintiff  having  been  supplied  with 
the  coals. 

Held,  that  he  could  not  recover  upon 
a  promissory  note  for  the  amount  of  the 
10s.  composition.  Kuight  v.  Hunt.  428 
2.  Plaintiff',  holding  two  bills  drawn  by  the 
defendant,  one  for  400/.,  the  other  for 
156/.  196'.  lOd.,  executed  a  composition 
deed,  containing  a  general  release  of 
the  defendant,  and  a  schedule  of  the 
sums  due  to  various  creditors  who  exe- 
cuted the  deed.  After  the  plaintiff's 
name  was  put  the  sum  of  156/.  19s.  IQd. 
only,  at  the  request  of  the  defendant, 
who  expected  the  plaintiff  would  reco- 
ver the  bill  for  400/.  by  suing  the  accep- 
tor. The  other  creditors  were  not  made 
acquainted  with  the  fact,  that  the  plain- 
tiff had  a  debt  of  400/.  as  well  as  156/. 
19s.  \Qd.: 

Held,  he  could  not  afterwards  sue  de- 
fendant on  the  bill  for  400/. 

Gaselee  .1.  dissentiente.     Britten  and 
Others  v.  Hughes.  250 

CONDITION. 

See  Ejectment. 

CONDITION  PRECEDENT. 

Plaintiff  engaged  to  effect  for  defendant 
an  insurance  with  such  names  as  should 
be  to  defendant's  satisfaction.  The  voy- 
age having  been  jierformed,  and  the  de- 
fendant never  having  required  to  see 
the  names  on  the  policy:  Held,  that  in 
an  action  for  the  premium,  he  could  not 
object  tliat  the  names  of  the  underwriters 
had  never  been  exhibited  to  him  for  his 
approval.  Dixon  and  Another  v.  Hovill 
and  Another.  104 

CONFIRMATION. 
See  Cross  Remainder. 

CONVEYANCE. 

Sec  MORTGABE. 

Where  commissioners,  under  an  enclosure, 


INDEX. 


Sal- 


made  an  allotment  in  respect  of  R.'s 
land  in  1824,  Held,  that  the  allotment 
passed  by  a  subsequent  convevance  ol" 
the  land  in  1824,  although  the'commis- 
sioners'  award  was  not  executed  till 
1827.  Doe  tlem.  Dixon  and  Another  v. 
ffilUt  and  Another.  49j 

CONVICTION. 

By  Stat.  6  G.  4.  c.  1C8.  s.  3.  if  any  vessel 
therein  described  shall  be  found  on  the 
high  seas,  within  100  leagues  of  any  part 
of  the  coasts  of  the  United  Kingdom,  or 
siiall  be  discovered  to  have  been  within 
the  said  distance,  having  on   board  the 
goods  therein  specified,  the  goods  and 
the  vessel  shall  be  forfeited.     By  s.  49, 
every  person  who  shall  be  found  or  dis- 
covered to  have  been  on  board  any  ves- 
sel liable  to  forfeiture  under  that  act  for 
being  found  or  discovered  to  have  been 
within  any  of  the  distances  or  places 
mentioned  in  the  act  from  the  United 
Kingdom,  shall  forfeit  100/.  and  may  be 
detained  and  taken  before  two  justices, 
to  be  dealt  with  as  thereinafter  mention- 
ed.    «y  s.  74.  any  offence  against  that 
act  shall,  for  the  purpose  of  prosecution, 
be  taken  to  have  been  committed,  and 
the  penalties  incurred,  at  the  place  on 
land  in  the  United  Kingdom  into  which 
the   person    committing  such   offence, 
orincurring  such  penalty,  shall  be  taken, 
brought,   or  carried;  and  in   case  such 
place  on  land  is  situate  within  any  city, 
&c.,  the  justices  of  the  peace  for  the 
city,  &c.,  as  well  as  those  for  the  county 
within  which  such  city  is  situate,  shall 
have  jurisdiction  to  try  all  offences  com- 
mitted upon  the  high  seas  against  the 
act.     A  vessel  liable  to  forfeiture  under 
this  act  was  seized  in  a  part  of  the  river 
Orwell  where  the  justices  of  Ipswich 
had  jurisdiction,  and  a  person  found  on 
board  the  vessel  was  taken  to  Harwich, 
and   prosecuted  before  two  justices  of 
that    place,    who    convicted    him    in  a 
penalty  of  100/.  for  having  been  found 
on  the  high  seas  on  board  a  vessel  liable 
to  forfeiture  :   Held,  that  the  justices  of 
Harwich,  bcingjusticcs  at  the  firstplacc 
on  land  to  winch  the  parly  was  carried, 
had  jurisdiction  to  try  the  offence. 

When  the  vessel  was  first  boarded  she 
was  just  entering  the  harbour  of  Har 
wich  :  Held,  that,  in  the  aijscncc  of  all 
other  evidence,  a  person  then  found  on 
board  might  properly  he  found  to  have 
been  on  board  on  the  high  seas.  In  the 
JMatter  of  Jumei  JVunn.  Z2b 


CORPORATION. 

1 .  Hy  an  act  of  parliament,  certain  persons 
were  incorporated  as  the  Hull  Dock 
Company,  and  premises  (before  the  pro- 
perty of  the  crown)  were  given  to  them 
for  the  purposes  of  the  act,  &  they  were 


authorized  to  make  a  dock,  quays, 
wharfs,  &c.  which,  it  was  enacte'd, 
should  be  vested  in  them  for  the  pur- 
poses of  the  act.  Amongst  other  things, 
it  was  provided,  that  "all  goods.  See. 
which  should  be  landed  or  discharged 
upon  any  of  the  quays  or  wharfs  which 
should  be  erected  by  virtue  of  that  act, 
should  be  liable  to  pay,  and  should  be 
charged  and  chargeable  with  the  like 
rates  of  wharfage  and  payments  as  were 
usually  taken  or  received  for  any  goods, 
&.C.  loaded  or  discharged  upon  any 
quays  or  wharfs  in  the  port  of  London;'' 
Held,  that  as  the  premises  were  only 
vested  in  the  Company  for  the  purposes 
of  the  act,  they  had  no  common-law 
right  to  a  compensation  for  the  use  of 
them,  and  that  the  statute  did  not  give 
them  any  right  to  claim  wharfage  for 
goods  shipped  ofi'from  their  quays.  The 
Bock  Company  at  Kingston- Upon-Hutl 
V.  La  JMarclie.  153 

2.  Where  a  party  had  been  sworn  into, 
and  had  exercised  a  corporate  office  for 
more  than  six  years,  the  Court,  in  the 
-  exercise  of  their  discretion,  and  without 
deciding  whether  he  was  protected  by 
the  32  G.  3.  c.  58.  refused  to  grant  a 
quo  warranto  information  against  him, 
on  the  ground  of  his  not  having  been 
sworn  in  before  the  proper  officer.  The 
King  v.  Robert  Brooks.  229 

3.  Where  an  election  to  an  oflTice  in  a  cor- 
poration was  to  be  made  by  a  select  body 
appointed  by  the  charter  to  be  aiding 
the  mayor:  Held,  that  the  mayor  was  not 
bound  to  give  to  the  members  of  such 
select  bod>  specific  notice  of  a  meeting 
to  be  holden  for  the  purpose  of  such 
election;  but  that  a  reasonable  and  usu- 
al notice  requiring  them  to  attend  at  a 
meeting  of  the  cor|)oration  at  a  time  .spe- 
cified, without  stating  for  what  purpose 
the  meeting  was  callcil,  was  sufficient. 
The  King  V.  I'uhfoul.  235 

4.  Information  for  usurping  the  office  of 
jurat  of  the  borough  of  Q.  I'lea,  that 
the  borough  of  (i.  was  a  free  borough, 
and  that  the  burgesses  of  the  borough 
were  a  body  corporate,  consisting  of  the 
mayor,  bailiffs,  and  burgesses  of  the  bor- 
ough, and  that  by  charter  it  was  grant- 
ed that  the  mayor,  hailiffH,  and  biiigpss- 
cs,  by  whatever  name  lliey  had  before 
been  incorporated,  should  thereafter  be 
a  body  corporate  by  the  name  of  "may- 
or,  jurats,  bailiffs,  and  burgesses;"  that 
there  should  be  one  of  the  more  honest 
and  tliscrcct  burgesses  or  inhabitants 
c-illcd  "mayor,"  to  be  elerled  ns  therein 
mcnlioncd;  and  four  lioncst  and  discreet 
burgesses  «ririhai)ilants  to  be  railed  "ju- 
rats;" and  two  other  honest  and  discreet 
burgesses  or  inhabitants  called  "bailiff's," 
that  the  juratR  and  bailiffn  should  hold 
their  offices  for  life,  unless  removed 
for  rc.-»sonable  cause;  and  whenever  it 


552 


INDEX. 


sboiilil  liappen  that  either  or  any  of  the 
jurats  or  bailitVs  for  the  time  being- 
shmilvl  (lie,  or  be  removed  or  withdrawn 
tVoni  his  or  their  office  or  oiHccs,  it 
shoidd  be  lawful  for  the  surviving  and 
remaining'  jurats  and  baiiiiVs  for  the  time 
beings,  or  the  greater  part  of  tliem  (of 
whom  the' mayor  should  be  one),  within 
convenient  time,  to  nominate  another  or 
others  of  the  burgesses  or  inhabitants  of 
the  borough  for  the  time  being  to  be  a 
jurat  or  jurats,  bailifl'  or  bailiff's,  of  the 
borough.  The  plea  then  stated  a  vacan- 
cy in  the  office  of  jurat,  and  that  the  de- 
fendant, being  an  uihabitant  of  the  bor- 
ough, was  duly  elected  to  l)e  a  jurat. 
Replication,  first,  putting  in  issue  the 
due  election  of  the  defendant;  and  sec- 
ondly, that  from  the  time  of  granting 
the  charter,  hitiierto  it  had  been  used 
and  accustomed  within  the  borough, 
thai  every  inhabitant  of  the  borougii 
elected  to  be  a  jurat,  before  he  look 
upon  himself  the  office  of  jurat,  should 
be  sworn  and  admitted  a  free  burgess 
of  the  borough,  and  that  the  defendant, 
before  he  took  upon  himself  the  office 
of  jurat,  had  not  been  admitted  and 
sworn  a  burgess.  Demurrer.  Upon  the 
trial  of  the  issues,  in  fact,  it  appeared 
that,  at  the  election  of  the  defendant, 
there  were  present  the  mayor,  two  bail- 
iffs, and  two  jurats  :  Held,  liiat  the  elec- 
tion was  valid,  for  the  general  rule,  that 
a  majority  of  each  definite  part  of  the 
elective  body  should  be  present  at  the 
election,  could  not  apply  to  this  corpo- 
ration, because  in  the  event  of  the  death 
or  removal  of  one  of  the  bailiff's,  it  would 
be  impossible  that  at  an  election  of  a 
new  bailiff  tliere  sliould  be  present  a 
majority  of  the  bailiffs. 

Held,  upon  demurrer  to  the  replica- 
cation,  t'.iat  according  to  the  true  con- 
struction of  the  charter,  it  was  compe- 
tent to  the  coiporation  to  elect  the  ju- 
rats from  the  inhabitants  of  the  borough 
or  from  tiie  burg-esses,  and,  therefore, 
that  the  plea  was  good,  inasmuch  as  it 
shewed  tiiat  the  defendant  was  an  in- 
habitant of  the  borough  at  tiie  time  he 
was  elected  to  the  office  of  jurat.  The 
King  V.  Greet.  240 

COSTS. 
i^ee  IxniCTMEST.     Phactice,    Moktgace. 

1 .  Plaintiff's,  an  Irish  company,  whose  con- 
cerns were  all  carried  on  in  Ireland, 
were  compelled  to  give  st-curitj'  for 
costs,  notwithstanding  an  affidavit  that 
tliey  had  money  in  a  banker's  hands  in 
J.orulon,  and  that  many  of  the  members 
i-esided  m  England.  Limerick-  and  IVa- 
terford  Railway  Company  v.  i'raser.     14 

2.  IMaintiff  having  succeeded  in  setting 
«si(le  a  nonsuit,  defendant  gave  a  cog- 
novit fbr  1*.  damages,  and  such  costs  as  ( 


the  profhonotary  should  thint;  fit.  Pro- 
thonotary  having  refused  to  all')W  plain- 
tiff the  costs  of  the  trial,  the  Court  de- 
clined interfering.    Elvin  v.  Drummond. 

24 

3.  A  defendant,  who  has  been  liolden  to 
bail  in  an  excessive  sum,  can  only  re- 
cover his  costs  under  43  G.  3.  c.  46.  s. 
8,  in  the  court  in  which  the  action  is 
brought;  where,  therefore,  the  action 
was  brought  in  the  Palace  Court,  and 
removed  into  the  Common  Pleas,  the 
Common  Pleas  refused  to  order  his  costs 
to  be  taxed.      Costello  v.  Corlett.  47 

4.  Costs  of  taxing  an  attorney's  bill  not 
allowed  to  a  party  who  succeeds  in  stri- 
king off  a  sixth,  where  the  order  for  tax- 
ing is  not  obtained  till  after  the  action 
on  the  bill  has  been  commenced.  Ben- 
ton V.  Billiard.  72 

5.  Arrest  for  100^.  "Verdict  for  plaintiff, 
subject  to  an  award;  costs  to  abide  the 
event;  39/.  18s. found  to  be  due,  and  the 
transactions  between  the  parties,  com- 
plicated. The  Court  refused  to  allow 
the  defendant  his  costs  under  43  G.  3. 
Turner  and  Jlnother  v.  Prince.  413 

6.  Trespass  qu.  cl.  fr.;  pleas,  not  guilt3', 
and  justifications  under  a  right  of  way. 
Issue  joined  on  not  guilty:  right  of  way 
traversed,  and  issue  joined  thereon. 
New  assignment  and  judgment  by  de- 
fault lliereon.  Verdict  for  plaintiflf'  Is. 
on  issue  of  not  guilty;  40s.  damages  on 
the  new  assignment;  verdict  for  defend- 
ant on  one  of  the  justifications:  Held, 
that  the  plaintiff  was  entitled  to  the 
general  costs  in  the  cause.  Vichers  v, 
Gallimore.  415 

COVENANT. 

1.  T.  C,  in  consideration  of  covenants  by 
H.  R.  C,  covenanted  not  to  interfere  in 
a  certain  branch  of  the  Scotch  fish  busi- 
ness, and  to  assign  to  H.  Ji.  C.  a  certain 
Scotch  fishery;  H.  II.  C.  in  consideration 
of  the  assignment,  and  of  T.  C.'s  cove- 
nent,  covenanted  to  pay  T.  C.  an  annui- 
ty: Held,  tiiat  the  covenant  not  to  in- 
terfere in  the  business  was  only  a  part 
of  the  consideration  for  the  annuity,  and 
was,  therefore,  not  a  condition  prece- 
dent or  dependent  covenant.  Carpenter, 
Jisslgnee  of  Thomas  Cress-well,  a  Bank- 
rupt, V.  //.  Ji.  Cressioell.  22 

2.  Covenant  against  the  assignee  of  the 
lessee  for  non-payment  of  rent.  Plea, 
that  before  the  rent  became  due,  the 
defendants  assigned  all  their  estate  and 
interest  in  the  demised  premises  to  A. 
B.  Ueplicalion,  that  in  and  by  the  in- 
denture, the  lessee  for  himself,  his  ex- 
ecutors, administrators,  and  assigns,  co- 
venanted that  he,  his  executor.?,  or  ad- 
ministrators should  not  assign  the  premi- 
ses thereby  demised  without  the  consent 
of  the  lessf)r,  and  that  no  consent  was 
given  :    Held,  upon  demurrer,  first,  that 


INDEX. 


553 


the  replication  was  bad,  inasmucli  as  the 
covenant  of  the  lessee  not  to  assign  did 
not  estop  the  assignee  from  setting  up 
the  assignment;  and,  secondly,  that  the 
action  being  founded  on  privity  of  es- 
tate, the  liability  of  the  defendant  ceas- 
ed as  soon  as  the  privity  of  estate  was 
destroyed.  Paul  and  Others  v.  Elizabeth 
A'urse  and  Edmund  JVurse.  273 

CROSS-REMAINDER. 

1.  Devise,  that  J.  B.,  a  trustee  for  devisor, 
shall  grant  the  premises  to  J.  B.'s  son 
G.  B.,  to  enter  on  after  the  death  of  J. 
B.,  and  that  J.  B.  and  G.  B.  shall  within 
one  month  after  devisor's  decease  pay 
100/.  to  W.  T.  and  T.  B.  to  discharge 
legacies,  and  if  they  omit  to  do  so,  that 
W.  T.  and  T.  B.  shall  let  the  premises 
and  raise  the  100/.  out  of  the  rent,  they 
keeping  the  deeds  of  the  premises,  and 
not  allowing  J.  B.  and  G.  B.  to  sell  or 
mortgage  till  the  legacies  be  paid  and 
G.  B.  be  twenty-one  years  of  age  ;  and 
that  if  G.  B.  die  and  leave  no  child  law- 
fully begotten  of  his  own  body,  W.  T. 
and  T.  B.  shall  sell  the  premises  and  di- 
vide the  proceeds  among  brothers,  &c.: 
Held,  an  estate  tail  in  G.  B,  Maggelt  v. 
Beatu.  434 

2.  Devise  to  J.  II.  L.  (devisor's  eldest  son) 
for  life  ;  remainder  to  trustees  to  pre- 
serve, &C.;  remainder  to  J.  H.  L.'s  sec- 
ond, tliird,  fourth,  fifth,  and  all  and  every 
other  ihe  son  and  sons  of  the  body  of  J. 
H.  L.  severally  and  successively  in  se- 
niority of  age  in  tail  male;  remainder  to 
devisor's  second  and  other  sons  succes- 
sively in  tail  male;  remainder  to  first  and 
other  daughters  of  the  body  of  .1.  II.  L. 
succfssively  in  tail  general;  remainder 
to  devisor's  eldest  daugliter,  M.  S.  L., 
for  life  ;  remainder  to  trustees  to  pre- 
serve, &c.;  remainder  to  her  fi-st  and 
other  sons  successivclyin  tail  male;  re- 
mainder to  her  first  and  other  daugiiters 
successively  in  tail  general;  like  remain- 
ders for  life  (with  remainders  to  trustees 
to  preserve, 8{.c.)todevisor's  (ithcrdaiigh- 
tcrs  successively,  with  like  rcfnaindcrs 
in  tail  to  their  respective  children;  re- 
mainder to  dcvinor's  sister  in  fee;  vari- 
ous terms  to  tnlstccs  to  raise  money;  and 
a  power  to  the  party  in  [lossesHion  of 
the  premises  devised,  to  charge  them 
for  the  pnnions  and  maintenance  of 
younger  children,  m.ilc  and  female,  nc- 
coinpanicd  with  a  [)rf)vision,  that  in  rase 
of  any  younger  cliiid's  obtaining  .n  l)'ir- 
tion,  and  afterwards  beroniiiig  entitled 
to  the  premises  devised,  the  |)orli(iii  of 
such  younger  child  should  go  over  to 
the  other  younger  ehildren  :  Held,  tint 
the  eldest  son  ot  J.  H.  L.  took  an  cstytc 
tail  in  the  premises  expectant  on  the 
death  of  J.  H.  L.  Lnnt;%ton  v.  I'olenud 
Othf^r».  .  '  428 

3.  Where  by  a  very  ol)sciire  and  illiterate 
vol..    XV. 


will,  property  was  left  to  devisor's  four 
grandsons,  •'  and  to  the  heirs  males  of 
the  said  grandsons,  and  then  to  the 
grandsons'  heirs  males  that  part  that  be- 
longed to  their  father,  and  then  to  the 
last  liver  to  the  heirs  males  of  the  said 
grandsons,  and  for  want  of  issues  males 
of  the  grandsons,"  over;  the  Court  im- 
plied cross  remainders. 

The  heir  in  tail  received  for  ten  years 
rent  under  a  lease  for  ninety-nine  years 
granted  b)-  his  ancestor;  Held,  a  confir- 
mation of  the  lease.  Doe  dem.  Ed-ward 
Southouse,  Clerk,  v.  Jenkins  and  -inother. 

506 
CUSTOM. 
See  Toll. 

CUSTOM  ECCLESIASTICAL. 

See  Evidence. 

DEBT. 

See  Evidence.     Lashlord  and  Tenant. 

Debt  lies  on  tlie  decree  of  a  colonial  court 
made  for  the  payment  of  the  balance  on 
a  partnership  account.    Henley  \.  Soper. 

174, 
DEED. 
See  Evidence.  Trespass. 

1.  An  indenture  recited,  that  A.  and  B.,  in 
May  1813,  had  entered  into  a  contract 
with  the  commissioners  for  victualling 
the  navy,  ^o  supply  his  Majesty's  ships 
with  eea  provisions  and  victualling 
stores,  and  that  the  said  A.  and  B.  in 
September  1813,  had  mutually  agreed 
to  dissolve  the  copaitnersiiip  entered 
into  by  them  as  aforesaid,  for  carrying 
on  the  business  of  the  said  contract, 
and  all  other  contracts,  entered  into 
with  the  commissioners  by  B.  or  A., 
and  in  which  they,  or  either  of  them, 
were  i"  an)  wise  interested  or  concern- 
ed, and  all  other  copartnerships  what- 
soever sui)sisling  between  them  ;  and 
upon  the  treaty  for  such  dissolution,  it 
was  agreed  that  the  share  of  B.  in  the 
property  behuiging  to  the  copnrtnei-- 
siiip  should  be  estimated  at  .50,000/., 
and-  be  taken  by  A.  at  that  sum.  Jt 
then  further  recited,  th.it  it  had  been 
agreed  that  A.  should,  by  his  ImukI,  in- 
demnily  B.  against  all  damages  by  rea- 
son of  his  having  entered  into  the  said 
recited  contract  with  A.,  and  by  reason 
of  all  other  contracts  entered  into  by  H. 
and  \.  res|)QCtivel}',  and  in  which  they 
or  eillier  of  them  had  any  interest  as 
aforesaid.  Tlic  indenture  then  witness- 
ed ihiit  A.  and  U.,  \)y  mutual  consent, 
dissolved  the  said  co])arlncrshlp  so  en- 
tered into,  Rud  then  or  lately  subsisting 
between  them  for  supjdying  his  Majes- 
ty's ships  will)  provisiuns  and  stores, 
under  or  l)y  \irtue  of  the  said  recited 
coiitrart,  and  ol  all  ollur  contracts  in 
which  H.  anrl  /\.,  or  either  of  them,  had 
any  in'crcst  ur  concern  as  aforesaid. 
70 


554 


INDEX. 


The  (leetl  tlien  cnntaiiieil  a  mutual  re- 
lease of  :«ll  actions,  accounts,  reckon- 
ings, St  c  which  either  of  tlicm  (A.  anil 
l\.)  now  hail  or  ever  had,  or  which 
either  of  them,  oreitherof  their  execu- 
tors, should  or  might  thereafter  have, 
claim,  or  demand  against,  from,  or  un- 
der the  other  of  them,  or  his  heirs,  exe- 
cutors, &c.,  for  or  by  reason  of  the  said 
copartnership  or  copartnerships  so 
thereby  dissolved  as  aforesaid,  upon  or 
by  reason  of  any  of  the  acts,  matters, 
and  things  whatever  in  anywise  relating 
to  the  said  recited  contract,  and  all 
other  contracts  in  which  B.  and  A.,  or 
either  of  tiiem,  had  any  interest  what- 
soever. B.  then  assigned  to  A.  all  the 
share  and  interest  of  him  (B.)  of  and  in 
all  the  debts  and  sums  of  money  what- 
soever, then  due  and  owing  to  them 
(A.  and  B.)  under  or  by  virtue  of  the 
same  several  contracts,  or  otherwise, 
and  all  bonds,  bills,  &c.  relating  to  the 
said  contract,  debts,  and  sums  of  money, 
or  any  part  thereof,  and  all  the  goods, 
stock,  and  effects  wiiatsoever  then  be- 
longing to  them,  the  said  A.  and  B.,  as 
such  copartners  respectively,  and  all 
the  right,  title,  and  interest  of  him  (B.) 
of,  in,  to,  from,  out,  or  in  respect  of  the 
premises.  A  power  was  then  given  to 
A.  to  recover,  and  give  discharge  for 
the  said  debts. 

At  the  time  when  this  deed  was  exe- 
cuted, B.  and  A.  had  been  concerned 
in  conducting  business  together  as  con- 
tractors for  the  navy.  In  some  con- 
tracts B.  was  solely  interested  as  con- 
tractor ;  in  others  A.  was  solely  inter- 
ested as  contractor;  and  in  some  they 
were  jointly  interested  as  partners  and 
contractors.  They  had,  however,  both 
been  concerned  in  all  the  contracts. 
A.  having  been  agent  in  managing  those 
contracts  in  which  B.  was  solely  inter- 
ested, and  B.  having  been  agent  in 
managing  those  contracts  in  which  A. 
was  solely  interested;  and  there  was 
money  due  from  the  commissioners  of 
the  navy  in  respect  of  each  of  these 
classes  of  contracts:  Held,  that  by  this 
deed,  the  contracts  in  which  B.  had 
been  originally  separately  interested, 
were  constituted  as  between  A.  and  B. 
partnership  contracts,  and  consequent- 
ly, that  A.  was  entitled  by  the  deed  to 
receive  all  sums  due  to  B.,  in  respect  of 
those  contracts,  at  the  time  of  the  exe- 
cution of  the  deed. 

By  the  deed,  B.  for  himself,  liis  heirs, 
executors,  and  adininisti-ators,  covenan- 
ted that,  for  and  notwithstanding  anv 
act  done  by  him  (H.),  it  should  be  law- 
ful for  A.  to  receive  the  money  debts, 
and  premises  thereby  assigned,  witliout 
any  let,  suit,  interruption,  or  denial  o/ 
B..  his  executors,  or  administrators,  or 
any  jierson  claiming  nnler  him  or  them  :  , 


Held,  that  the  words,  "  for  and  notwith- 
standing any  act  done  by  B.''  being  in- 
consistent with  the  suiisecjuent  part  of 
the  covenant,  ought  to  be  rejected,  and, 
therefore,  that  it  was  a  sufficient  breach 
of  th.at  covenant  to  allege  a  receipt  of 
the  money  by  the  executor  of  B.  in  re- 
spect of  the  contracts  mentioned  in  the 
indenture.  Belcher  v.  ff.  li.  Sihes.  186 
2.  By  marriage  settlements  between  W.  M. 
and  T.  M.,  son  and  heir  apparent  of  W. 
M.,  of  the  first  part ;  J.  H.  and  Mary  H. 
of  the  second  part ;  and  L.  G.  and  J. 
H.,  trustees,  of  the  third  part ;  W.  M. 
and  T.  M.  bargained  and  sold  to  the 
trustees  certain  lands  called  Ninnisses 
and  Sandry's  Fields,  and  other  lands 
called  Varwell,  then  in  possession  of  W. 
M.  and  T.  M.,  to  hold  unto  the  trustees, 
their  heirs  and  assigns,  as  to  Sandry's 
Fields  and  Ninnisses,  to  the  use  of  W. 
M.  for  life  ;  remainder  to  the  use  of  the 
trustees  during  the  life  of  W.  M.  upon 
trust  to  preserve  contingent  remainders, 
with  remainder  to  the  use  of  the  said 
T.  M.  for  life,  remainder  to  the  said 
trustees  and  their  heirs  during  the  life 
of  T.  M.  upon  trust  to  preserve  contin- 
gent remainders,  with  remainder  to  the 
first  and  other  sons  of  T.  M.  by  M.  H. 
successively  in  tail  male,  with  remain- 
der to  the  use  of  the  right  heirs  male  of 
T.  M.  for  ever ;  and  as  to  all  the  other 
settled  premises  to  the  use  of  T.  M.  for 
life,  witli  remainder  to  the  use  of  trus- 
tees, their  heirs  and  assigns,  during  the 
life  of  T.  M.,  in  trust  to  preserve  con- 
tingent remainders,  with  remainder  to 
the  use  of  M.  H.  for  her  life,  for  raising 
out  of  the  rents  and  profits  an  annuity 
of  25/.  per  annum,  and  stibject  thereto 
to  the  use  of  the  first  and  other  sons  of 
T.  M.  by  M.  11.  successively  in  tail  male, 
with  remainder  for  want  of  issue  male 
by  T.  M.  on  tlie  body  of  M.  H.  begot- 
ten ;  or  if  such  issue  male  should  die 
without  issue  male,  and  T.  M.  should 
have  any  daughter  or  daughters  by  M. 
H.  at  the  time  of  his  death,  then  that  the 
trustees,  their  heirs  and  assigns,  should 
stand  seised  of  the  said  hereditaments 
to  the  use  of  the  issue  female  of  T.  M. 
by  M.  H.,  for  raising  portions  as  therein 
mentioned  to  such  daCightcr  and  daugh- 
ters ;  and  that  until  twenty-one  the  trus- 
tees and  their  heirs  should  out  of  the 
rents  raise  such  maintenance  of  such 
daughter  and  daughters  as  to  the  trus- 
tees should  seem  meet,  and  after  rais- 
ing the  said  sums  for  the  maintenance 
of  such  daughter  and  daughters  as 
aforesaid,  or  in  defavdt  of  issue  female, 
to  the  use  of  the  right  heirs  male  of  T. 
M.  for  ever:  Held, 

First,  that  the  last  words  were  words 
of  limitation  and  not  of  purchase,  and 
that  T.  M.  took  the  ultimate  Temainder 
in  fee ;  and. 


INDEX. 


555 


Secondly,  if  they  were  words  of  pur- 
chase still  they  would  create  a  contin- 
gent remainder  during  the  life  of  T.  M., 
which  would  vest  immediately  upon  his 
death  in  his  heir,  who  might  devise  the 
same. 

Thirdly,  that  by  the  limitation  as  to 
the  Vaiweil  and  Crugmere  Closes,  the 
trustees  took  an  estate  only  during  the 
infancy  of  the  daughters  ;  and. 

Fourthly,  even  if  they  took  a  fee,  it 
was  a  fee  "determinable  when  the  por- 
tion should  have  been  raised ;  and 
twenty  years  of  possession  adverse  to 
their  claim  having  occurred,  the  pre- 
sumption was,  that  the  right  of  the  trus- 
tees had  been  released  and  satisfied. 

W.  M.  died  leaving  two  sons,  who 
died  without  issue.  The  survivor  of 
them  devised  the  estate  to  his  wife  for 
life,  remainder  to  all  and  every  the 
children  of  Kichard  E.  and  M.  P.  who 
should  be  living  at  the  time  of  his  wife's 
death.  There  were  hving  at  her  death 
nine  children  of  K.  E.  and  M.  F.  Of 
these,  two  during  her  life,  and  while 
their  estates  remained  contingent,  had 
levied  fines  sur  conusance  de  droit  come 
ceo  of  their  shares.  In  April  1824  A. 
U.  entered  upon  the  lands  comprised  in 
the  marriage  settlement,  and  kept  pos- 
session, and  in  May  1824  all  the  children 
of  U.  E.  and  M.  F.  by  lease  and  release 
conveyed  the  lands  comprised  in  the 
marriage  settlement  in  giving  propor- 
tions to  a  purchaser :  Held,  that  the 
children  of  K.  E.  and  M.  P.  might  con- 
vey their  interests  williout  having  first 
made  any  entry  into  the  land,  althougii 
A.  B.  was  in  possession. 

Secondly,  as  to  the  shares  of  the  two 
who  had  levied  fines  while  their  estates 
were  contingent,  that  their  interest  was 
not  thereby  extinguislied.  Doe  un  the 
srveral  tlemtict  of  Churlea  I'riiUaux 
liru'te  and  Edward  Coodc,  V.  Uilliam 
Marli/n  the  younger.  27(3 

3.  The  defendant  executed  a  deed,  con- 
veying his  property  to  trustees  to  sell 
for  the  benefit  of  creditors*,  the  pur- 
ticulais  of  whose  demand  were  slaltd  m 
the  deed,  a  blank  was  lefl  for  one  of  ihc 
principal  debts,,  the  exact  aniount  of 
which,  being  subsecjueiitly  asctrlaincd, 
was  msiTted  in  tlie  blank  the  next  day 
in  the  delcndant's  prcuence,  ami  with 
his  assent.  Me  afterwards  recognized 
the  deed  an  valid  in  various  ways,  par- 
ticularly by  being  present  when  it  was 
txecuted  by  his  wife,  and  by  joining 
her  ill  a  fine  to  enure  to  the  uses  of  ilic 
deed:  Held,  that  the  deed  wan  vidid, 
noiwiih.Hiandiiig  tlie  filling  up  of  the 
blank  after  execution. 

The  allornc)  who  had  prepan  d  the 
deed,  on  the  ntaimr  of  I  he  tinstirs, 
wasUtUI  a  romprlciit  witiKssMian  issue 
dirtcled  bN  tlic  CouH,  to  W)  ilsvahdi'v, 


although  one  of  the  trusts  w^s  to  defray 
the  charges  of  preparing  the  deed, 
and  although  he  was  defendant  in  an- 
other action,  his  success  in  which  de- 
pended on  the  validity  of  the  deed. 

At  all  events,  in  such  an  issue,  the  de- 
fendant was  held  not  entitled  to  a  new 
trial,  on  account  of  the  admission  of  the 
testimony  of  such  witness,  justice  having 
been  done.     Hudson  v.  Revett.  467 

DEEPING  FEN. 
See  Fks-i-ands.  , 

DELIVERY  OF  CHATTELS. 
See  EsTOVF.R. 
DEMURRAGE. 
See  Shipping. 
DEPOSIT. 
See  Vendor  and  Vendee. 

DtrsnsE. 

1.  Devise  to  C.  S.  in  trust  for  the  separate 
use  of  S.  S.,  and  to  convey  the  premises 
to  S  S.  her  heirs  and  assigns,  free  from 
the  controul  of  her  present  or  any  future 
husband,  and  to  permit  her  to  take  the 
rents  and  profits : 

Held,  that  S.  S.  had  no  power  of  de- 
vising the  premises.  Doe  dem.  Stevens 
ami  Another  v.  Scntt.  59 

2,  Devise  to  A.  for  life,  remainder  unto  "the 
surviving  children  of  W.  J.  and  J.  W., 
and  their  heirs  for  ever;  the  rents  and 
profits  lo  be  divided  between  them  in 
equal  proportions,  share  and  share 
alike:"  Held,  that  the  word  "surviv- 
ing" referred  to  the  testator's  death, 
and  not  that  of  the  tenant  for  life.  Doe 
on  the  demise  of  Charles  IVakeinun  Long 
V.  Hcnrif  Prigs'-  206 

).  Hy  a  memorandum  of  agreement,  in 
consideration  of  the  rent  and  conditions 
thereinafter  mentioned,  A.  was  to  have, 
hold,  and  occupy,  as  on  lease,  certain 
premises  therein  sjicrified,  at  a  certain 
rent  per  acre.  And  it  was  stinul  ited, 
that  no  buildings  should  be  incluilcd  or 
leased  by  virtue  of  the  agreement ;  and 
it  was  lurlhcr  .igrceil  and  stipulated, 
that  A.  should  take,  at  the  rent  afore- 
said, certain  other  parcels,  as  tlie  same 
might  fidl  in;  and,  lastly,  it  was  stijju- 
hiicd  and  condnioiied  th.it  A.  should  not 
assign,  tiMiislir,  or  underlet,  any  |)ait  ot 
the  said  lands  and  pieiiii-.es  ullierwisc 
than  to  his  wife,  cliilil,  or  children  : 
Held,  that  by  the  last  clause  a  condition 
was  creale<l.  f'«r  the  breach  of  winch 
the  lessor  might  maintain  an  ejectment. 
Due  oil  the  demise  of  Jleiinikvr  v.  II  nil. 

niSCLAIMKU. 
Sec  EJi.crMKiT. 

DISrUKSS. 
I    II  was  staled  in  a  special  \rrdicl,  thai  by 
an  indenture  A    <leinised  lo  11.,  all  (hat 
w  harf  next  titc  river  Ihaineg,  dcvtibcd 


556 


index: 


by  abutmtnts,  tog'ether  with  all  ways, 
patlis,  passages,  easements,  proiils,  com- 
iniMJitic!),  :tiKl  appurtenances  wliatsoevtT 
to  the  said  wharf  bc-lonijing;  and  that  by 
the  inilentnre  the  exclusive  use  of  the 
land  of  the  river  Tliames  opposite  to  and 
ill  front  of  the  wluirf,  between  high  and 
low  water  mark,  as  well  wlieii  covered 
with  water  as  dry,  for  the  accommoda- 
tion of  the  tenants  of  the  wharf,  was  de- 
mised as  appurtenant  to  the  wharf,  but 
that  y»c  land  itself  between  high  and 
low  water  mark  was  not  demised:  Held, 
that  tile  meaning  of  this  finding  either 
was,  that  the  land  was  demised  as  ap- 
purtenant to  the  wiiarf,and  then  it  would 
be  a  finding  that  one  piece  of  ground 
was  appurtenant  to  another,  which  in 
law  could  not  be;  or,  that  the  mere  use 
of  the  land  passed  by  the  indenture, 
and  that  was  a  mere  privilege  or  ease- 
ment, out  of  which  rent  could  not  issue, 
and  consequently,  that  the  lessor  could 
not  distrain,  for  rent  in  arrear,  barges, 
tiie  property  of  B.  lying  in  the  space 
between  high  and  low  water  mark,  and 
attached  to  liie  wharf  by  r()i)cs.  Bus- 
zardiiuit  Oc/ieis,  ^issi^nees  of  Jones  and 
Another,  Bankrupts,  v.  Cupel  and  nn- 
uther.  169 

2.  Where  a  landlord's  agent  went  upon 
the  tenant's  premises,  walked  round 
them,  and  gave  a  written  notice  that  he 
had  distrained  certain  goods  lying  there 
for  an  arrear  of  rent,  and  that  unless  the 
rent  was  paid,  or  the  goods  replevied 
within  five  da\  s,  they  would  be  apprais- 
ed and  sold,  and  tiien  went  away,  not 
leaving  any  person  in  possession:  Held 
that  this  was  a  suiticicnt  seizui'e  to  give 
the  tenant  a  right  of  action  for  an  ex- 
cessive distress;  and  that  quitting  the 
premises  without  leaving  any  one  in 
possession  was  not  an  abandonment  of 
the  distress,  the  11  G.  2.  c.  19.  s.  10. 
giving  the  landlord  power  to  impound 
or  otherwise  secure  on  the  premises 
goods  distrained  for  rent  arrear.  Swmm 
V.  I'/te  Earl  of  FalmouCh  and  Jenniuij-s. 

264 

3.  The  Stat.  38  G.  3.  c.  5.  s.  9.  enacts,  that 
the  collectors  of  the  land-tax  shall  levy 
and  collect  the  rates  assessed,  accord- 
ing to  the  intent  of  that  act;  and  they 
are  required  to  demand  all  sums  of  mo- 
ney taxed  and  assessed  of  the  parties 
themselves,  as  the  same  shall  become 
due,  if  they  can  be  found,  or  else  at  the 
place  of  their  last  abode,  or  upon  the 
premises  charged  with  the  assessment. 
Sect.  17.  enacts,  that  ifany  person  shall 
refuse  or  neglect  to  pay  any  sum  of 
money  whereat  he  shall  be  assessed  up- 
on demand  by  the  collector,  it  shall  be 
lawful  for  the  collector  to  distrain,  &c. 
A  collector  having  made  a  demand  of 
the  land-tax  upon  the  premises  charged 
at  a  time  w  hen  the  party  liable  to  pay 


was  absent  from  home,  and  not  upon  the 
party  himself,  and  distrained  immedi- 
ately alter  making  such  demand,  the 
distress  was  held  to  be  unlawful;  for 
that  before  he  distrained  he  was  bound 
to  allow  a  reasonable  time  to  elapse  af. 
ter  the  demand  made,  in  order  that  the 
party  liable  to  pay  the  lax  might  have 
an  opportunity  of  complying  with  the 
demand. 

By  sect.  2.,  the  sum  therein  mention- 
ed is  to  be  levied  within  the  year;  and 
by  sect.  12.  it  is  enacted,  that  the  fourth 
part  of  that  sum,  for  the  first  quarterly 
payment,  shall  be  levied  on  or  before 
the  24th  day  of  June  1798;  that  the  same 
sum,  for  the  second  quarterly  payment, 
shall  be  levied  before  the  29th  of  Sep- 
tember 1798;  the  like  sum,  for  the  third 
quarterly  payment,  on  or  before  the 
25th  day  of  December  1798;  and  the  like 
sum,  for  the  last  of  the  quarterly  pay- 
ments, on  or  before  the  25th  day  of 
March  1799.  Semble,  That  the  sums 
due  for  the  last  quarterly  payment  may 
be  levied  by  the  collector  at  any  time 
during  the  current  quarter.  Gibbs  v. 
Suimiel  Stead  and  W.  Reed.  233 

4.  A  landlord,  to  whom  rent  was  in  arrear, 
hearing  his  tenant  and  a  stranger  dis- 
puting about  the  property  of  an  article 
on  the  premises,  early  in  the  morning 
entered  and  said,  "The  article  shall  not 
be  removed  till  my  rent  is  paid."  The 
stranger,  nevertheless,  removed  the  ar- 
ticle. On  the  same  day,  after  the  re- 
moval, the  landlord  sent  his  broker  to 
distrain  for  the  rent: 

Held,  that  the  distress  was  sufficient- 
ly commenced  by  the  landlord  to  entitle 
him  to  the  article  in  question.  Wood  v. 
JVunn.  346 

5.  Avov/ant,  who  had  a  term  which  ex- 
pired on  the  11th  of  November,  1826, 
let  the  premises  orally  from  the  11th  of 
September  to  the  11th  of  November  in 
that  year,  for  270/.,  payable  immediate- 
ly: 

Held,  that  this  was  a  lease,  of  which 
parol  evidence  miglit  be  given,  and  not 
an  assignment  requiring  a  writing;  but 
that  being  a  demise  of  the  whole  of 
avowant's  interest,  he  had  no  right  to 
distrain.      I'reece  v.  Corrie,  353 

6.  A  tenant  distrained  on  for  rent  request- 
ed the  broker  not  to  proceed  to  sale, 
and  engaged,  in  consideration  of  for- 
bearance, to  pay  the  broker's  charges. 
Time  was  given  and  the  charges  paid, 
but  the  tenant  objected  to  the  amount 
of  them,  and  to  tlie  amount  of  rent  de- 
manded: Held,  that  this  was  not  a  volun- 
tary payment,  and  that  the  charges,  if 
irregular,  might  be  recovered  back  in 
an  action  for  money  had  and  received. 
Hills  V.  Street.  358 

DLCHY  of  CORNWALL. 

Sec  LVIDE>(.E. 


INDEX. 


557 


DUCHY  OF  LANCASTER.     I 

Although  tl»e  Duchy  of  Lancaster  is  held 
by  tlie  king  separately  from  his  crown,  a 
grant  of  duchy  property  is  subject  to 
the  same  incidents  as  a  grant  from  the 
crown. 

Therefore,  an  immediate  grant  to  A. 
in  fee,  under  the  duchy  seal,  of  proper- 
ty which  was  in  the  possession  ot  B.  un- 
der an  unexpired  lease  from  the  duchy 
for  years,  (such  lease  not  being  recited 
in  the  grant)  was  held  void,  notwith- 
standing there  had  been  a  user  under 
tlie  grant  from  the  date  of  it  (163.)  to 
1760.     Alcockw.  Cook  and. Inolher.   462 

EASEMENT. 
See  DisTBESs. 


EJECTMENT. 

See  Elegit.     Evidence.     MoRTGicE. 

.  Defendant,  who  held  under  a  tenant  for 
life,  received,  on  her  death,  a  letter  from 
the  lessor  of  the  plaintiff,  claiming  as 
heir,  and  demanding  rent. 

Defendant  answered,  tliat  he  held  the 
premises  as  tenant  to  S.;  that  he  hud 
never  considered  lessor  of  plaintilf  as  his 
landlord;  that  he  should  be  ready  to  pay 
tlie  rent  t  >  !>ny  one  who  should  be  pro- 
ved to  be  entitled  to  it,  but  that  without 
disputing  the  lessor  of  the  piivintift  's 
pedigree,  he  must  decline  taking  upon 
himself  to  decide  upon  his  claim,  with- 
out more  satisfactory  proof,  in  a  legal 
manner. 

Held,  that  this  was   a  disclaimer    of 
lessorof  plaintiff's  title.    Doe  dcm.  Cal- 
vert V.  Frowd,  '" 
2.  Where  a  party  was  presented  to  a  rec- 
tory in  consideration  of  his  having  given 
a  bond  to  resign  in  favour  of  a  particu- 
lar person,  at  the  rcqiiesl  of  the  patron, 
and  was  instituted  and  indacie(l,and  such 
bond  was  held  to  be  void,  on  the  ground 
that  It  WHS  smifniiacal,  and  the  king  then 
presented  A.  H.,  and  he  was  instituted 
itiid  inducted:  Held,  that  he  might  main- 
tain  ejectment  for  the   rectory  against 
the  person  who  had  been  simoniacall) 
piescnted.      Hoe  on   the    dcmite    of  the 
llnnourubte  Hrwy  It  atton,  Clerk,  v.  H. 
H'.  Fletcher,  Clerk.                                     151 
I.  Ejectment  for   a   messuage   ind  Icne- 
nient.     Judgment  entered  up  generally 
for  the   plaintifi':    Held,  no  giound  for 
rcvtrsal  on  <-rror.     J)oe  dem.  Imv/vic  and 
jiiiother  \,  Dtjeball.  I''! 
4.  A  fine  was  levied  by  A.  in  Hilary  term, 
1821.     A.  and  H.  claimc<l  to  be  heir  at 
law  of  C     There  being  several  actions 
depending  «'>  try,  whether  A.  or  H.  wun 
heir  at  law,  it  \vu»  agreed  that   the  rnit 
should  be  paid  into  a  banker"*,  to  aliidr 
the  event  of  one  of  those  causes.      I  he 
rau.ne  was  decided  in  favour  of  A.  m 


1823,  and  the  rent  paid  into  the  bank- 
er's was  then  paid  over  to  him.  It  in- 
cluded half  a  year's  rent  due  from  the 
tenant  on  the  25ih  of  March  1821:  Held, 
in  an  ejectment  brought  subsequently 
on  the  demise  of  B.,  in  which  he  suc- 
ceeded in  shewing  that  he  was  heir  at 
law  of  C,  that  A.  hud  no  seisin  in  Hilary 
term  1821.  when  the  fine  was  levied, 
and  consequently  that  the  fine  did  not 
operate  as  a  bar  to  the  ejectment.  Doe 
on  the  demise  of  Lidgbird  V.  La-uison  and 
Another.  312 

5.  A  cottage  standing  in  the  corner  of  a 
meadow  (belonging  to  thfe  lord  of  a  ma- 
nor), but  separated  from  it  and  from  a 
high  road  by  a  hedge,  had  been  occupi- 
ed for  above  twenty  years  without  any 
payment  of  rent.  The  lord  then  de- 
manded possession,  which  was  reluct- 
antly given,  and  the  occupier  was  told 
that  if  he  was  allowed  to  resume  posses- 
sion it  would  only  be  during  pleasure. 
He  did  resume  and  keep  possession  for 
fifteen  years  more,  and  never  paid  any 
rent :  Held,  that  the  possession  was  not 
necessarily  adverse,  but  might  be  pre- 
sumed to  have  commenced  by  permis- 
sion of  the  lord.  Doe  on  the  demise  of 
Thompson  and  Others  v.  Clark.  331 

,  In  ejectment  by  mortgagee  against 
mortgagor,  it  is  not  necessary  to  demand 
possession  before  action  brought.  Where 
the  mortgagee  suffers  the  mortgagor  to 
remain  in  possession  of  the  mortgaged 
premises,  the  latter  is  not  tenant  at  will 
to  the  former,  but  at  most  tenant  by  suf- 
ferance only;  and  may  be  treated  either 
as  tenant  or  trespasser  at  the  election  of 
the  mortgagee.  Doe  on  the  demise  of 
Jioby  v.  JMaisey.  335 


ELEGIT. 

1.  Where  two  elegi'.s  are  issued  the  same 
day  upon  judgments  signed  in  tlic  same 
term,  the  sherifV  may  extend  on  each 
an  entire  moiety  of  the  defendant's  land, 
although  the  judgments  are  at  the  suit 
ofdiflcrciit  plaintiffs,  and  the  inq\iisition 
on  the  second  elegit  rcriles,  that  a  moi- 
ety lias  been  extended  on  the  first. 

2.  Where  a  party  defends  an  ejectment 
as  landlord,  and  the  occupiers  of  the 
premises  have  sufVi-rcd  judgment  hy  de- 
fault, he  cannot  objeclthai  the  orcnpi- 
eis  have  not  received  notice  to  quit 
from  the  lessor  of  the  plainlifl'.  Due 
dfin.  Ditviri  v.  ('reed.  Doe  dcm,  Davie* 
ami  ('hrcae  V.  Creed.  459 

ERUOU. 

Bail  in  error  not  tlispcnscd  with  w  here  lh« 
error,  though  real,  is  only  of  form. 
fl  nd-.worlh  \.  Gihton.  76 

ESCAPE. 
See  KviDBicE. 


558 


INDEX. 


EVIDENCE. 
See  DuKn.     Cosvution.      Limitatiohs. 

I'LKilllNO.       Dt'CMT    OF    LaNCASTEU. 

1.  Defendant  agreed  to  pay  plainl'df,  in 
consideration  of  her  becoming  his  ten- 
ant, 20/.  to  repair  tlie  house,  and  also 
to  make  certain  alterations. 

Plaintifi'  became  tenant  under  a  lease, 
in  which  this  agreement  was  not  stitted, 
and  did  the  repairs ;  when  defendant 
promised  to  paj  for  them  : 

Held,  that  he  was  liable,  at  all  events, 
on  the  account  stated,  although  the 
agreement  had  not  been  introduced  in- 
to the  lease.     Sea^o  v.  Dearie.  39 

2.  In  an  action  on  a  charier-paity  against  a 
charterer,  the  Court  refused  to  compel 
the  plaintiff  to  allow  the  defendant  an 
inspection  of  the  ship's  log-book.  Jiuti- 
dle  V.  Jieuiimont.  66 

3.  I'laintifts,  ship-owners,  sued  defendant, 
their  broker.  Tlie  Court  refused  to 
compel  him  to  give  a  copy  of  a  letter 
wliicii  he  had  received,  touching  an  ad- 
venture in  which  the  ship  was  to  have 
been  employed.  Koiue  and  Others  v. 
lluwden.  69 

4.  A  kept  mispress  is  not  incompetent  to 
give  evidence  for  her  protector,  al- 
though she  has  passed  by  liis  name,  and 
his  appeared  in  the  world  as  his  wife. 
Jfdlthews  V.   Galindo.  88 

5.  Affidavit  that  a  party  is  indebted  to  de- 
ponent in  the  sum  of  100/.  and  upwards, 
and  is  become  bankrupt,  is,  as  against 
deponent,  conclusive  evidence  of  the 
bankruptcy.  Ledbelter,  Assignee  of  Hul  ■ 
lis,  V.  Suit.  91 

6.  D  ,  called  as  a  witness  for  the  defend- 
ant in  an  action  brought  by  the  plaintifi' 
for  a  barge  which  W.  had  placed  in  the 
hands  of  defendant,  and  whicli,  it  was 
alleged,  B.  had  sold  to  the  plaintiff  first, 
and  then  to  W.,  was  holden  a  compe- 
tent witness  for  the  defendant,  having 
been  released  by  W.  Radburn  v.  Mor- 
ris anil  Bottom/ft/,  98 

7.  Where  a  defendant  pleaded,  by  way  of 
set-off,  a  bond  given  to  him  by  the  plain- 
tiff, conditioned  for  payment  of  an  an- 
ruity  to  a  third  person,  which  had  been 
previously  granted  by  the  defendant, 
and  that  a  certain  sum  was  in  arrear: 
Held,  that  he  was  not  bound  to  prove 
that  he  had  paid  the  money  in  order  to 
set  it  off,  but  that  on  the  production  of 
the  bond  the  plaintiff  was  bound  to 
prove  payment.  Penny  and  Another, 
Jissigneet  of  R.  Buncombe,  a  Bankrupt, 
V.  Foy.  146 

8.  A  witness  called  to  prove  the  receipt 
of  a  sum  of  money,  was  shewn  an  ac- 
knowledgment of  the  receipt  of  such 
money  signed  by  himself;  and  on  see- 
ing it  said  that  he"  had  no  donljl  he  had 
received  it,  althoujih  he  had  no  recol- 
lection of  the  fact:  Held,  that  this  was 


SI  fTicient  parol  evidence  of  the  payment 
of  the  money,  and  that  the  written  ac- 
knowledgment having  been  used  to  re- 
fresh the  memory  of  the  witness,  and 
not  as  evidence  of  the  payment,  did  not 
require  any  stamp.  Maugham  v. 
Hubbard  and  Robinson,  .itsiffnees  of 
Lancaster,  a  Bankrupt.  147 

9.  A  will  more  than  thirty  years  old  may 
be  read  in  evidence,  without  proof  of 
its  execution,  although  the  testator  has 
died  within  thirty  years,  and  some  of 
the  subscribing  witnesses  are  proved 
to  be  still  living.  After  the  lapse  of  a 
period  of  more  than  100  years :  Held, 
also,  that  in  the  absence  of  evidence  to 
the  contrary,  the  death  of  a  party  with- 
out issue  might  be  presumed.  Doe  on 
the  demise  of  Oldham  and  Wife  v.  Wol- 
ley.  150 

10.  The  mother  of  a  pauper  stated,  that 
about  twenty-four  years  ago  she  receiv- 
ed money  from  the  parish  officers  at  S. 
to  put  her  son  out  apprentice,  and  that 
she  accordingly  put  him  out;  that  the 
indenture  was  signed  by  her,  the  pau- 
per, the  master,  and  by  a  witness;  that 
she  gave  it  to  the  wife  of  a  market- 
gardener  who  attended  the  market  of  S., 
to  take  to  the  overseers  of  the  parish 
of  S.;  that  the  market-gardener  and  his 
wife  were  both  dead,  the  latter  having 
survived  her  husband  ;  that  she  did  nut 
know  whether  the  market-gardener's 
w  ife  had  left  any  will,  but  had  heard  that 
she  had.  Evidence  was  then  given  that 
search  had  been  made  in  the  pansh- 
chest  of  S.  for  the  indenture,  and  that 
it  could  not  be  found  :  Held,  that  as  it 
was  the  duty  of  the  overseers,  if  the  in- 
denture had  come  into  their  possession, 
to  deposit  it  in  the  parish-chest,  the 
presumption  was,  that  it  was  lost  or  de- 
stroyed, and,  therefore,  that  secondary 
evidence  of  the  execution  and  contents 
of  the  indenture  was  admissible.  'Ihe 
King  V.  The  Inhub.  of  Stourbridge.    155 

11.  In  an  action  against  the  Marshal  for  an 
escape,  the  declaration  alleged,  that 
plaintiff  and  W.  B.  having  divers  dis- 
putes, by  mutual  bonds  of  submission, 
referred  them  to  the  arbitration  of  C. 
and  D.  That  an  award  was  made,  or- 
dering W.  B.  to  pay  the  plaintiff  a  cer- 
tain sum  of  money  on,&c.;  and  because 
the  award  was  not  performed,  the  plain- 
tiff sued  a>)d  prosecuted  out  of  the  court 
of  C.  V.  a  writ  commanding  the  defend- 
ant to  attach  W.  B.  (then  being  in  his 
custody),  so  that  he  might  have  his  bo- 
dy before  the  Justices  of  C.  P.  on,  &c., 
to  answer,  &c.;  and  W.  B.  being  and  re- 
maining in  the  custody  of  defendant  as 
such  marshal,  by  virtue  of  the  attach 
ment,on,  &c.  was  brought  before  Sir  S. 
C,  a  judge  of  C  I'.,  at  his  chambers, 
by  writ  of  habeas  corpus,  and  by  him 
commilted  to  the  cubiody  of  the  War- 


INDEX. 


559 


den  of  tlte  Fleet,  anJ  afterwarJs  was 
biouglu  before  Sir  J.  L.,  a  jmlge  of  K. 
B.,  at  chambers,  ani.1  by  liini  commiUed 
to  the  custody  of  the  defendant  charged 
with  tl>e  attachment,  and  that  defend- 
ant afterwards  suffered  him  to  escape  : 

Held,  tliat  plaintiff'  was  bound  to 
prove  the  execution  of  llie  bond  of  sub- 
mission by  himself  as  well  as  by  W,  B. 
Semble,  That  he  need  not  have  done  so 
had  he  alleged  and  proved  a  rule  of  C. 
V.  ordering  the  issuing  of  the  attach- 
ment, although  proof  of  such  rule,  with- 
out a  statement  of  it  in  the  declaration, 
would  not  be  sufficient. 

Quaere,  Whether  the  commitment  by 
a  judge  at  chambers  was  legal  ? 

12.  'Ihe  common  user  of  a  wall  separat- 
ing adjoining  lands  belonging  to  diff'er- 
ent  owners,  is  pnma  fucie  evidence  that 
the  wall,  and  the  land  on  which  it 
stands,  belong  to  the  owners  of  those 
adjoining  lands  in  equal  moieties  as  te- 
nants in  common.    Ciibitt  V.  Porter.  211 

13.  In  trover  for  a  chattel  claimed  by  the 
plaintiff^,  as  vendee  of  an  executor,  tlie 
will  is  not  evidence  of  the  title  of  the 
executor.  The  probate  must  be  pro- 
duced.   Barnard  Finney  v.  Joel  Finney. 

230 

14.  By  the  Welch  judicature  act,  5  G.  4. 
c.  106.  s.  21.,  it  is  enacted  that  in  all 
transitoi7  actions  which  shall  be  brought 
in  any  court  of  record  out  of  the  princi- 
pality, and  the  debt  or  damages  recov- 
ered shall  not  amount  to  50^,  and  it  shall 
appear  on  the  evidence  given  on  the 
trial  that  the  cause  of  action  arose  in  the 
principality,  and  that  the  defendant  was 
resident  in'  Wales  at  the  time  of  the  ser- 
vice of  any  writ  or  other  mesne  process 
served  on  him  in  such  action,  and  it  sludl 
be  so  testified  under  the  hand  of  the 
Judge  who  ti-iod  the  cause,  a  j\idgnient  of 
nonsuit  shall  be  entered:  Held,  that  it  is 
discretionary  in  the  Judge  who  tries  the 
cause  to  grant  or  refuse  the  certUicati- 
mentioned  in  tiie  act;  and  that  where  the 
Judge  ha-s  refused  to  certify,  this  Court 
has  no  power  to  oider  a  judgment  of 
nonnuit  to  be  cntcrc<l. 

Held,  by  Lord  Tiutirden  C.J.  at  Nisi 
FriuH,  that  it  lies  upon  the  di  fV-ndant  to 
shew  tliat  lie  was  residing  in  Wales  at 
the  time  when  the  writ  or  mesne  pro- 
cess wjis  screed  on  him  in  the  action, 
and  that  general  evidence  that  his  usual 
place  of  remdenic  both  before  and  sub- 
sequent to  t  lie  commencement  of  the  ac- 
tion, was  in  Wales,  is  not  sufficient. 
Jimcs  v.  Kcnrich.  2.3 1 

15.  Declaration  upon  a  bill  of  exchange, 
drawn  on  the  29th  November,  1H27, 
payable  two  months  after  date,  was  cnt i- 
tle.l  generally  of  Hilary  tcnn  1K2H;  Held, 
that  it  was  competent  to  the  plaintiff  to 
prove  by  the  parol  evidence  of  the  at  - 


torncy  (without  producing  the  writ)  that 
the  action  was  commenced  after  the  1st 
of  Februar}',  when  tlic  bill  became  due. 
Lester  v.  Jfnkins.  232 

16.  Where  an  indictment  for  a  conspiracy 
alleged,  that  "  at  the  court  of  quarter 
sessions  holden,  &.c.  an  indictment 
against  A.  B.  was  preferred  to,  and 
found  by  the  grand  jury ;"  Held,  that  this 
alleg.ition  must  be  proved  by  a  caption 
regularly  drawn  u])  of  record,  and  that 
the  minute-book  kept  by  the  deputy 
clerk  of  the  peace  could  not  be  received 
as  evidence  of  the  finding  of  the  bill, 
although  no  record  had  been  in  fact 
drawn  up.  The  King  v.  Smith  and  two 
others.  232 

17.  An  indictment  had  been  preferred 
against  a  county  for  not  repairing  a 
bridge  at  the  instance  of  the  inliabitants 
of  a  parish,  and  the  question  intended  to 
be  tried  was,  whether  the  inliabitants  of 
the  parish  or  county  were  liable  to  re- 
pair it  ?  Tiie  Court  refused  to  compel 
the  inhabitants  of  the  parish  to  allow 
the  parties  indicted  to  inspect  the  pa- 
rish books  and  documents  relating  to  the 
repair  of  the  bridge.  The  Kiitff  v.  Tlie 
Justices  of  the   County  of  Buclcingham. 

240 

18.  Where  the  speaker  of  the  House  of 
Commons  certified  that  a  certain  sum 
was  due  to  A.  U.,  "a  witness  summoned 
by  and  on  behalf  of  C.  D.,  one  of  the 
sitting  members  for  Dublin,  to  give  evi- 
dence before  an  election  committee," 
the  Court  ordered  judgment  to  be  en- 
tered up  agiiinst  C.  D.  for  that  sum  as 
upon  a  warrant  of  attorney,  the  certifi- 
cate being  held  conclusive  as  to  the 
fact  of  the  witness  having  been  sum- 
moned, and  the  stat.  53  Ci.  3.  c.  71.  be- 
ing held  applicable  to  witnesses  sum- 
moned by  a  sitting  member,  as  well  as 
to  those  summoned  by  a  petitioner. 
Jilagrave  v.  White.  252 

19.  An  order  of  justices  requiring  the 
stewards  of  a  benefit  society  to  re-admit 
A.  B  ,  who  had  been  expelled,  recitetl 
that  it  had  appeared  to  the  justices  thut 
the  rules  of  the  society  had  been  enroll- 
ed at  the  (piarter  sessions.  On  the  trial 
of  an  indictment  against  the  stewards  for 
disobeying  such  order:  Held,  that  the 
recital  was  not  evidence  of  the  enroll- 
ment of  the  rules.  TIte  A'inff,  on  tlie 
firoKt'ciitinn  of  G.  S/iurgrjn^^  y.  Uilkes 
and  otlii-m.  261 

20.  A.  being  tenant  of  premises  under  an 
indenture  of  lease  granted  b}  H.,  a  se- 
f|Ucstration  Issued  out  of  the  Court  of 
Chancery  against  the  latter.  A.  then 
signed  the  following  instrument: — "I 
hereby  attorn,  and  brronie  the  tenant 
to  v..  and  \).,  two  «)f  the  Re<pieslralois 
named  in  the  writ  of  Hequcstration  is- 
sued in  the  said  suit  in  Chancery,  «nd 


560 


INDHX. 


to  liolil  tlift  same  for  such  time  nnd  on 
•iich  coiulitiuns  us  muy  be  subsequently 
agreeil  upon  :"  Held,  th«t  this  was  an 
apreomeiit  to  become  tenant,  and  re- 
quired a  stamp  :  Held,  secondly,  that 
tiie  defendant  not  having  received  pos- 
session of  the  premises  from  C  and  1)., 
might  (Uspute  their  title,  and  that  the 
lease  not  being  proved  to  have  been  sur- 
rendered, was  an  answer  to  the  action. 
Cornish  and  another  v.  SenrelL  267 

21.  In  an  action  founded  on  the  statute  11 
G.  2.  c.  19.  s.  3.  against  a  party  for  aid- 
ing and  assisting  the  tenant  in  the  fraud- 
ulent removal  of  his  goods,  with  intent 
to  prevent  the  landlord  from  distraining 
them,  it  is  incumbent  on  the  landlord 
not  only  to  prove  that  the  defendant  as- 
sisted the  tenant  in  such  fraudulent  re- 
moval, but  also  tiiat  he  was  privy  to  the 
fraudulent  intent  of  the  tenant. 

Semble,  That  the  statute  is  so  far  pe- 
nal, that  it  is  incumbent,  in  an  action  by 
the  landlord  against  a  third  party,  for 
assisting  the  tenant  in  such  frauduTent 
removal,  to  bring  the  case  by  strict 
proof  within  the  words  of  the  first  sec- 
tion,   Charles  Brooke  v.  Thomas  j\'o a hes. 

289 

22.  A  fieri  facias  issued  against  the  goods 
of  A.  The  goods  were  seized  by  tlie 
bailiff.  The  execution  creditor  author- 
ized the  bailiff  to  quit  possession,  the 
debtor  consenting  that  he  might  return 
at  any  time  and  sell  the  goods.  Tlic 
bailiff'  accordingly  gave  up  possession, 
and  at  the  end  of  some  months  returned, 
and  notice  of  sale  was  given.  Before 
the  sale,  another  fieri  f  icias  issued  at  the 
suit  of  a  second  creditor.  To  that  writ 
the  sheriff  returnetl  nidla  bona.  The 
second  creditor  brought  an  action  for  a 
false  return,  and  recovered  the  value  of 
the  debtor's  goods  against  the  sheriff. 
The  sheriff,  having  previously  paid  the 
value  of  such  goods  to  the  creditor  un- 
der the  first  fi.  fa.,  brought  an  action  to 
recover  from  him  that  money  :  Held, 
that  he  was  entitled  to  recover  the  same, 
unless  it  were  shewn  by  the  defendant 
that  at  the  time  when  the  sherifi'  made  ! 
the  payment  he  was  acquainted  with  the 
fact  of  the  misconduct  of  his  officer,  and 
that,  as  between  the  sheriff  and  the  ex- 
ecution creditor,  the  act  of  the  bailiff 
was  not  to  be  considerefl  the  act  of  the 
sheriff,  so  as  to  fix  the  latter  with  know- 
ledge of  the  misconduct  of  his  officer. 
Crowder  and  another  v.  /*.  Long,  Gent. 
one,  cj/C.  309 

23.  Relief  given  to  a  pauper  while  he  is 
residing  out  of  the  relieving  parisii,  is 
prima  facie  evidence  of  a  settlement  in 
that  parish ;  and  evidence  of  one  in- 
stance in  which  relief  was  so  given  was 
held  to  be  sufficient  to  warrant  a  finding 
by  the  sessions  that  the  pauper  was  set- 
tled in  the  relieving  parish,  altlioiigh 


upon  a  second  nppliration  relief  had 
been  refused.  The  King  v.  The  Inha- 
bitants of  Edwinstoivc.  327 

24.  Upon  the  trial  of  an  appeal,  the  apel- 
lant  having  proved  that  the  pauper  oc- 
cupied a  tenement  of  10/.  per  annum, 
and  paid  rent  and  taxes  for  the  same, 
the  respondents,  in  order  to  shew  that 
the  pauper  was  not  the  sole  tenant,  at- 
tempted to  prove  by  parol  that  the  pre- 
mises were  let  to  the  pauper  and  two 
other  persons  ;  but  the  witness  on  cross- 
examination  having  stated  that  the  let- 
ting was  by  a  written  instrument,  the 
court  held  that  it  could  be  proved  only 
by  the  production  of  that  instrument. 
The  Kinir\.  The  Inhabitants  of  Ji  aw  den. 

^  329 

25.  Where  the  crown  is  interested  the  at- 
torney-,general  may, as  a  matter  of  right, 
demand  a  trial  at  bar. 

Where  in  trover  for  copper  ore  it 
was  proved  that  the  plaintiff  was  in  pos- 
session of  land  in  which  he  sunk  a  shaft 
and  raised  the  ore  in  question,  and  the 
same  witness  on  cross-examination  prov- 
ed that  the  ore  was  taken  away  by  a 
person  who  had  a  shaft  in  an  adjoining 
close,  and  who  was  getting  the  same 
lode  of  copper  ore  under  the  plaintiflf's 
land  v/hen  he  sunk  his  shaft :  Held, 
that  this  was  prima  facie  evidence  of 
the  plaintiff's  title  to  the  ore,  which 
must  be  left  to  the  jury. 

On  account  of  the  interest  which  tlie 
crown  has  in  the  duchy  of  Cornwall,  all 
acts  which  affect  the  possessions  or  re- 
venues of  the  duchy  are  to  be  consider- 
ed as  public  acts;  and,  on  this  ground, 
a  document  purporting  to  be  a  caption 
of  seisin  taken  to  the  use  of  the  first 
Duke  of  Cornwall  by  certain  persons 
assigned  by  his  letters  patent  to  do  so, 
was  received  in  evidence  to  shew  the 
rights  of  the  Duke. 

An  ancient  extent  of  crown  lands 
found  in  the  proper  office,  and  purport- 
ing to  have  been  taken  by  a  steward  of 
the  king's  lands,  and  following  in  its 
construction  the  directions  of  the  stat.  4 
Ed.  1,  will  be  presumed  to  have  been 
taken  tmder  competent  authority,  al- 
though the  commission  cannot  be  found. 

The  enrolment  of  a  lease  granted  by 
the  Duke  of  Cornwall  is  evidence,  in  the 
same  manner  as  if  it  had  been  granted 
by  the  crown  when  there  is  no  Duke  of 
Cornwall. 

Where  in  each  of  several  manors  be- 
longing to  the  same  lord,  and  part  of 
the  same  district,  it  appeared  that  there 
was  a  class  of  tenants  answering  the 
same  description,  and  to  whom  their 
tenements  were  granted  by  similar 
words :  ile\<i,  that  evidence  of  what 
rights  had  been  enjoyed  by  those  te- 
nants in  one  manor,  might  be  received 


INDEX. 


561 


to  gliew  wliat  were  their  rights  in  aiio- 
ther. 

Answers  to  interrogatories  may  be 
read  without  producing  the  interroga- 
tories, if  they  cannot  be  found.  Roioe 
V.  Brenton,  o.i5 

26.  An  entry  in  the  register-book  by  the 
niinisler  of  the  parish  of  the  baptism  of 
a  child,  which  had  taken  place  before 
he  became  minister,  or  had  any  connec- 
tion with  the  parish,  and  of  which  lie 
received  information  from  the  parish 
clerk,  is  not  admissible  in  evidence,  nor 
is  the  private  memorandum  of  the  fact 
made  by  the  clerk,  who  was  present  at 
the  baptism.  Doe  dem,  Warren  v.  Aaron 
Bray.  339 

27.  In  an  action  between  A.  and  B.,  the 
Court  refused  a  rule  to  compel  B.  to 
produce,  for  the  purpose  of  stamping, 
an  agreement  between  B.  and  C,  al- 
though by  an  affidavit  of  C.'s  it  appear- 
ed that  the  act  complained  of  by  A. 
arose  out  of  this  agreement.  Laivrence 
V.  Hooker.  345 

28.  Defendants'  agents  abroad,  by  order 
of  defendants,  received  money  on  defen- 
dants' account,  and  stated  the  fact  in  a 
letter  to  the  defendants.  Defendants 
replied,  acknowledging  the  receipt  of 
the  agents'  letter,  and  giving  them  di- 
rections as  to  the  disposition  of  the 
money  : 

Held,  that  the  agents'  letter  was,  cou- 
pled with  the  defendants',  admissible  in 
evidence  to  charge  the  defendants  with 
the  receipt  of  the  money.  Coates  and 
another,  Assignees  of  Plaskelt,  a  bank- 
rupt, v.  Btunbridge  and  othtra.  368 

29.  A  banker's  ledger  is  receivable  in  evi- 
ence  to  show  that  a  customer  had  no 
funds  in  the  banker's  hands.  Fumess 
V.  Cope.  3H7 

30.  Qujcre,  Whether  in  an  action  for  an  in- 
jury to  the  reversion,  proof  that  the  pre- 
mises were  devised  to  plaintiH',  and  that 
an  occupier  holds  as  tenant  to  the  |)lain- 
tilT,  the  luiter  fact  being  established  by 
oral  evidence,  althougii  tlic  occupier 
holds  under  a  written  agreement,  be 
sufficient  to  shew  a  reversion  in  the 
plaintifl'. 

Be$t  (',  J.  and  Ihirrough  .1.  ncg.  Park 
.1.  and  (iairli:f  .1 .  air.  Strolhei  and  Anoth- 
er v.  liarr  a.iil  Another.  o".'! 

31.  Where  a  bmliop  has  omitted  lo  prcHcnl 
to  a  living  lapsed  to  iiini  tor  want  of 
presentation  within  six  months,  a  party 
who  mi«y  present,  ifthe  bishop  oniiis  to 
do  so,  is  not  a  competent  witness  lor 
one  who  claims  in  the  same  right  as  sucii 
party. 

A  conveyance  ofa  fourth  part  of  an  nd- 
vowson  in  1672,  is  not  to  lie  deemed  vol- 
untary, because  the  only  pecuniury  con- 
sideration expressed  in  the  deed  is 
twenty   shillings. 

An  answer  in  Chancery,  touching  an 
VOL.   XV. 


advowson,  filed  by  one  w-lio  had  been 
BCised  of  tlie  advowson^  twenty  years 
after  he  had  conveyed  it  away.  Held, 
not  admissible  in  evidence  against  a 
party  who  claimed  the  advowson  tiirough 
him.  Gully  and  Others  v.  Bishop  of 
Exeter  and  Dowling.  408 

32.  Where  a  party  sues  on  an  instrument 
which,  on  the  face  of  it,  appears  to  have 
been  altered,  it  is  for  him  to  shew  that 
the  alteration  has  not  been  improperly 
made.     Jlenmanv.  JJickinson.  409 

33.  Semble,  tiiat  a  postmark  may  be 
proved  by  any  one  in  the  habit  of  re- 
ceiving letters  by  tiie  post. 

An  action  to  recover  the  balance  of  an 
account  is  not  within  the  Boston  Court 
of  Conscience  Act,  if  the  account  origi- 
nally exceeded  51.  although  the  sum 
sougiit  to  be  recovered  is  less  than  51, 
Abbey  v.  /////.  452 

34.  A  bishop's  register  is  evidence  of  the 
facts  stated  in  it. 

An  allegation  ofa  custom  in  parishion- 
ers to  elect  a  curate  is  not  supported  by 
proof  of  such  a  custom  in  parishioners 
paying  church  rates. 

Semble,  an  ecclesiastical  custom 
(which  is  not  immemorial)  will  not, 
though  acted  on  for  a  long  time,  deprive 
a  rector  of  his  common  law  right  to  ap- 
point his  curate.  Arnold,  Clerk,  and  0th- 
era,  v.  The  Bishop  of  Bath  and  Wells, 
Leeves,  and  Davies.  459 

35.  Where  defendant  surreptitiously  ob- 
tained possession  of  an  unstamped 
agreement  executed  by  himself  and  the 
plaintifl' (thereby  preventing  the  plain- 
tiff from  affixing  a  stamp  as  he  ha.liir- 
tended,  in  twenty-one  days  after  execu- 
tion), and  then  swore  that  he  hail  lost 
the  agreement,  the  Court  ordered  that 
he  should  produce  a  copy  in  his  posses- 
sion to  the  plaintiff,  and  tliat  ifthe  plain- 
tiff proilured  that  copy  stamped  at  the 
trial,  the  (Ut'eiulant  should  be  preclu- 
ded from  producing  the  original.  Bona- 
field  mid  .Jnothrr  v.  (Jodfrry.  485 

36.  Where  one  of  the  attesting  witnesses 
to  a  will  is  dead,  witnesses  may  b^  cal- 
led lo  his  character. 

Declarations  of  the  testator  in  subver- 
sion of  a  will  are  not  admissible  in  ovi- 
dencc,  tliongli  both  |»arties  claini  under 
him,  and  though  they  are  offered  with  a 
view  to  shew  the  manner  in  which  the 
will  was  executed.  y'rotu>  and  li owe  v. 
Heed.  490 

37.  Where  the  plainlifT  in  nn  nrtioii  on  a 
charler-p:irty,  had  comninnicatcd  to  the 
attCHliiig  w'itiieHH  an  interi  st  in  the  ad- 
venture subscipieiiily  to  the  execution 
of  the  instniniLnt:  Held  that  evidence  of 
his  liHiiif  writing  was  iiudiiiissiblc.  Ho- 
vill  V.  Sicphenion.  5\5 

KXCK.SSIVF,  IIAH.. 
Sec  l'i.Kii>tMtt. 


562 


INDEX. 


EXECUTION. 

See  Elkgit.    Practick.    SaERiFi. 
Bankrupt. 

.  Where  administration  had  been  taken 
out,  the  Court  refused,  without  the  au- 
tliority  of  the  administratrix,  to  dis- 
charge defendant  out  of  execution  after 
the  death  of  the  plaintiff,  although  l)is 
administratrix  and  his  assignees  (he 
having  been  a  bankrupt),  disclaimed  all 
interest  in  the  action.  Fothergill  v. 
IValton  and  Itondeau.  113 

I.  Plaintiff,  a  ship-owner,  agreed  by  char- 
ter-party with  T.  to  take  any  goods  on 
board  which  T.  should  ship,  and  convey 
them  from  Van  Diemen's  Land  to  Lon- 
don. T.  covenanted  to  pay  freiglit  at 
the  rate  of  15s.  per  ton  per  month,  ten 
days  after  the  delivery  of  the  cargo,  and 
then  consigned  a  cargo  to  defendant  by 
a  bill  of  lading,  under  which  they  or 
their  assigns  were  to  pay  freight  as  per 
charter. 

T.  being  indebted  to  defendants,  they, 
on  the  arrival  of  the  ship  in  London, 
sued  out  a  writ  of  fi.  fa.  and  took  the 
cargo  forcibly  from  the  ship,  exhibiting 
the  sheriff's  warrant  to  the  captain  : 
they  did  not  sell  under  the  fi,  fa.  but 
afterwards  made  affidavit  at  the  custom- 
liouse  that  they  landed  the  cargo  as  the 
importers. 

Plaintiff  having  sued  them  in  trespass 
for  entering  his  ship  and  taking  the 
cargo,  and  to  a  justification  under  the 
writ,  having  replied  de  injuria  absque 
residuo  causae,  and  having  new-assigned 
that  the  defendants  took  the  goods  for 
other  purposes  than  those  mentioned  in 
the  pleas,  Held,  that  it  was  competent 
to  tlie  Ja<lge  to  leave  it  to  the  jury  to 
say,  whether  the  goods  were  bona  fide 
taken  under  the  execution,  or  whether 
the  execution  was  resorted  to  as  a  colour 
to  enable  the  defendants  to  get  posses- 
sion^of  and  land  the  cargo  as  importers, 
without  subjecting  themselves  to  the 
claim  orquestion,that  might  have  arisen 
if  they  hud  accepted  them  under  tlie  bill 
of  lading.  Lucas,  'J'hompson,  Diivis, 
Bull,  T.  Lintf/.am  and  Eicke,  v.  JVockells, 

132 

EXECUTOR. 

See  Pleadisg. 

An  administrator  is  not,  by  the  condition 
of  the  bond,  given  in  pursuance  of  the 
statute  of  distributions,  22  and  2-3  Car. 
2.  c.  10.  bound  todls'ribute  the  surplus 
of  the  intestate's  estate  after  pa\  ment  of 
debts,  £cc.  until  a  decree  directing  him 
Bo  to  do  has  been  made  by  the  court 
into  which  his  inventory  and  account 
has  been  exhibited.  The  .Irchchbifhop 
of  Canterbury  v.  Tappen.  174 


FALSE  IMPRISONMENT. 

See  TuEsi'Ass. 

FEME   COVERT. 

1.  A  married  woman  taken  in  execution  to- 
gether with  her  husband  for  a  debt  due 
from  her  before  marriage,  is  not  enti- 
tled to  be  discharged,  unless  it  appears 
that  she  has  no  separate  property,  even 
although  the  husband  has  been  discharg- 
ed under  the  insolvent  act.  Sparkes 
and  Others  v.  Bell  and  Wife.  143 

2.  A.,  an  insolvent,  having  petitioned  the 
court  for  the  relief  of  insolvent  debt- 
ors to  be  discharged  out  of  custody;  and 
having  been  brought  up  before  that 
court  to  be  examined,  was  opposed  by 
B.  a  creditor,  and  remanded  to  a  future 
day.  Before  that  day  arrived,  C,  who 
acted  as  the  attorney  of  A.,  in  considera- 
tion of  B.'s  withdrawing  his  opposition 
to  A.'s  discharge,  undertook  that  B. 
should  be  the  sole  assignee  of  A.'s  estate, 
and  should  receive  100/.  out  of  it  within 
three  weeks  from  his  appointment:  Held, 
that  this  agreement  was  contrary  to  the 
policy  of  the  insolvent  act,  and  therefore 
void.     Murray  v.  Reeves,  Gent.,  one,  &c. 

254 

FEN  LANDS. 

By  statute  16  &  17  Car.  2.,  the  trustees  or 
adventurers  for  draining  Deeping  Fen 
were  seised  of  10,036  acres  of  land,  and 
the  rates  and  taxes  for  completing  the 
drainage  of  the  fen  were  to  be  levied  on 
the  10,036  acres.  They  were  called 
taxable  lands.  There  were  5000  acres 
called  free  lands,  and  the  other  lands  in 
the  fen  consisted  of  common  land.  The 
adventurers  were  at  their  own  costs  and 
charges  to  keep  the  river  Glen  with  suf- 
ficient diking,  roading,  scouring,  and 
banking.  By  a  subsequent  act  of  the  41 
G.  3.  reciting  the  former  act,  and  that 
the  works  of  drainage  were  insufficient, 
and  th.it  the  owners  and  proprietors  of 
free  lands,  and  persons  interested  in  the 
commons,  notwithstanding  their  exemp- 
tion from  the  costs  of  making  works  of 
drainage,  together  with  tlie  adventurers, 
being  desirous  to  obtain  a  better  drain- 
age for  all  the  said  lands,  and  more  ef- 
fectually to  protect  the  same  from  injury 
by  a  breach  in  any  of  the  banks  of  the 
river,  had  agreed  that  the  respective 
works  of  drainage  thereinafter  mention- 
ed should  be  made,  erected,  maintained, 
and  supported,  at  the  expense  of  the 
trusts,  proprietors,  and  persons,  in  the 
proportions  thereinafter  mentioned.  By 
a  subsequent  clause,  the  commissioners 
under  tiiat  act  were  thereby  required 
well  and  sufficiently  to  enlarge,  deepen, 
and  scour  out  the  river,  and  straighten 
the  course  thereof  where  necessary,  and 


INDEX. 


563 


enlarge  and  straighten  the  banks  of  the 
river  in  such  manner  as  in  the  judgment 
of  the  commissioners  should  be  requisite; 
and  the  costs  of  executing  all  the  said 
works  were  to  be  paid  and  borne  by  the 
several  persons  then  respectively  liable 
to  the  repairs  of  such  banks,  in  conjunc- 
tion with  the  owners  and  proprietors  in- 
terested in  the  drainage  of  the  said  com- 
mons, in  such  proportions  as  to  the  com- 
missioners should  seem  just  and  equita- 
ble, and  as  tliey  by  their  award  should 
appoint,  and  such  respective  banks,  af- 
ter the  commissioners  should  have  com- 
pleted the  same,  should  from  time  to 
time  be  repaired  by  such  persons  as  the 
commissioners  should  by  their  award  di- 
rect: Held,  tiiat  the  adventurers  were 
not,  by  this  sUtute,  released  from  the 
obligation  imposed  on  them  by  the  16 
&  17  Car.  2.  of  cleansing  and  scouring 
the  river  Glen.  ISyson  and  Anotlier  v. 
Johmon  and  Others.  3o8 

FINE  AND  RECOVERY. 

1.  Recovery  amended  by  abridging  the  re- 
turns. Still  demandant  ;  Raymond,  Ttn- 
ant  .•  f.  La-w,Jivit  Vouchee  ;  J.  Law,  He. 
cond.  ^' 

2.  The  Court  refused  to  amend  a  recovery 
by  altering  Berks  into  Bucks.  JJuwUug, 
Demandant;  Selby,  Vouchee.  27 

FOREIGN  JUDGMENT. 


1.  An  action  lies  in  the  Englisli  courts  on  a 
Scotch  judgment  oi  hoiniiiif  against  a 
Scotchman  born. 

Where  ihe  testator  resided  and  died 
abroad,  Held,  his  executor  in  England 
might  be  sued  within  siX  years  after 
taking  out  probate.  Douglau  and  Jn- 
other,  ,ii»iffneei  of  Stein  and  Smith, 
Banki-uptt,  v.  Fort  est.  Executor  of  Jamm 
Hunter.  1 1-> 

2.  A  disch.irge  of  an  insolvent  debtorupon 
a  cessit)  bonoium  by  the  court  of  session 
in  Scotland,  is  no  answer  loan  action 
brought  by  an  Englisli  subject  in  a 
court  in  tins  country  to  recover  a  debt 
contracted  in  Enj^hmd,  aliliough  it  wp- 
peared  that  the  plaintiff  oi)|>ijscd  tlic 
discliargo  of  the  delendaut  in  the  Scotch 
court. 

Sembic,  Th.it  it  would  have  been  an 
answer  to  ihc  action  it  the  pl.iiniift  luid 
claimed  to  have  the  bcn«  ht  cif  the 
Scotch  law,  anil  to  take  a  dintributivc 
gliarr  of  the  property  of  the  insolvrnt. 
J'hiltipi  V.  .Utun.  '2(J'J 

FOKFEITUUE. 

Rff    KjKCTMH.fT. 

FUADULEN  r  PUEFKUENCE. 
See  B.IXKRUPT. 


FRAUDS,  STATUTE  OF. 

1,  If  A.,  without  authority,  makes  a  con- 
tract in  writing  for  the  purchase  of 
goods  by  B.,  and  B.  subsequently  rati- 
fies  the  contract,  such  ratification  ren- 
ders A.  an  agent  sufficiently  authorized 
to  make  the  contract  under  the  statute 
of  frauds. 

2.  Where  the  purchaser  of  goods  re- 
fuses  to  take  them,  the  vendor,  by  re- 
selling them,  does  not  preclude  himself 
from  recovering  damages  for  the  breach 
of  contract.  .Maclean  v.  Dunn  nnd 
Wutkins,  -who  survived  Austin.  129 

FREIGHT. 

See  Shipping. 

FRIENDLY  SOCIETIES. 

I  By  the  rules  of  a  friendly  society,  a  medi- 
cal attendant  was  entitled    to  3s.   per 

I  annum  from  every  member ;  and  a  com- 
mittee of  the  society  were  authorized 
to  settle  all  disputes,  grievances,  &c. 
relative  to  the  att'airs  of  the  society,  sub- 
ject to  an  appeal  to  two  magistrates. 

The  plaintiff,  who  had  been  duly  ap- 
pointed medical  attendant,  was  dismiss- 
ed by  the  committee  without  any  meet- 
ing  of  the  members  of  the  society  at 
large,  and  another  appointed.  Upon 
an  application  to  magistrates,  they  re- 
commended a  public  meeting;  which 
being  convened  accordingly,  a  larcje 
majority  of  the  members  voted  for  the 
plaintifi",  whothereupon  sued  the  defen- 
dant, the  treasurer,  for  the  3s  received 
to  the  use  of  the  medical  attendant  : 

Held,  that  the  pluintifi'  was  entitled 
to  recover,  and  that  the  defendant  was 
not  exonerated  by  an  order  of  the  com- 
mittee  not  to  pay.  Garner  v.  Shelley 
and  Others.  510 


GROUND  RENT. 

See  LANnLoiiD  and  Tknant. 

GUAKANTY. 

Defendant  guaranteed  the  payment  of 
gold  with  which  i)laintin"  should  supi)ly 
a  jroldsmith  for  the  purposes  of  his  trade. 
I'laiutilf  discounted  bills  for  the  gold- 
Binilh,  and  gave  him  for  tlu-m  purlly 
^<M  und  partly  nioncy  ;  the  gold  wus 
111)1)111(1  to  tlif  goMsmitli's  tr.-ule,  l)iit  the 
jjoldsinitli  iliil  not  inilorse  the  bills  : 

Hi  Id,  thai  the  defendant  w:is  not  lia- 
ble under  Ills  giiuriiniee  tor  the  gold  so 
furnished.     J.  Kvnni  v.  U  hyle.         Jll 

GAME. 

The  statute  .58  i'..  3.  c.  75.  prohibits  the 
buying  of  pliea>ants  in  all  cases,  and 
therefore  by  a  coniract  for  the  sale  of 
li\c  phc;iH:mls,  no  property  passislo  the 
purcluser.      //<•'/'»  v.  Clcnistcr.  295 


561 


INDEX. 


HIGHWAY. 

See  Ari'EAL. 

1.  In  an  oi\lcr  ot'jnsticos  for  stopping-  »p 
an  unnecessary  liigluvay  under  llic  55  Ci. 
3.  c.  68,  itimust  be  stated  that  it  uppear- 
eil  to  tlic  justices,  un  vif.v,  tliat  the  way 
was  unnecessary  ;  and,  iherei'ore,  an  or- 
der, merely  stating  that  tlie  "justices 
lia<i,  upon  view,  found,  or  tliut  it  appear- 
ed to  them,"  lliat  tlie  way  was  unneces- 
sary, IS  bad.  The  King  v.  The  Justices 
nf  H'orcestershire,  210 

2.  An  order  of  justices,  for  diverting  and 
stopping  uj)  a  highway,  substituted  for 
tlie  old  highway  a  new  road,  which  pass- 
ed j)artly  over  a  road,  described  in  the 
wder  as  a  new  line  of  turnpike  road. 
The  sessions  confirmed  the  order,  sub- 
ject to  a  case.  'I'his  Court  quashed  the 
order  of  sessions,  because  it  did  not  ap- 
pear on  the  face  of  the  order,  or  of  the 
case,  that  the  public  had  the  same  per- 
manent right  to  pass  over  the  new  road 
as  they  had  to  pass  along  the  old  one. 

Qua:re,  Whether  justices  can  divert 
a  road  for  carriages  and  continue  it  for 
tbot-passeitgers.  T'le  Kiitg  v.  Jolin 
Winter.  338 

FIULL  DOCK  COMPANY. 
See  Coni'onATiON. 

HUNDUtlD,  ACTION  AGAINST. 

A  building  intended  for,  and  constructed 
as  a  dwelling  house,  but  which  had  not 
been  completed  or  inhabited,  and  in 
which  the  owner  had  deposited  straw 
and  agricultural  implements,  Held,  not 
to  be  a  house,  outhouse,  or  barn  within 
the  meaning  of  the  stat.  9  G.  1.  c.  22.  s. 
7.  so  as  to  entitle  the  owner  to  maintain 
an  action  against  the  hundred  for  an  in- 
jury sustained  by  him  in  consequence 
of  malicious  setting  fire  to  the  same. 
Jilamore  v.  The  Inhabitunls  of  the  hun- 
died  of  at.  Jiriavetls.  266 

INDICTMENT. 

The  Stat.  7  G.  4.  c.  74.  s.  23.,  which  pro- 
vides for  the  allowance  of  costs  to  pro- 
sectilors  and  witnesses  in  certain  cases 
of  misdemeanour,  docs  not  apply  where 
the  indictment  has  been  removt-d  into 
K.  n.  by  certiorari.  The  King\,  Rich- 
aitU  and  Others.  253 

INDOKSKMKNT. 
Sec  I'aht.veusiiii'. 

INl'EUIOR  COURT. 
See  PnACTicr,. 

INFORMATION, 

1.  An  information  stated  that  certain 
goods  were  about  to  be  imported  into 
Gieat  Briluiii  from   parts    bejond  the 


seas,  in  respect  of  which  certain  duties 
would  be  payable  :  and  that  one  It.  H., 
at  the  time  of  committing  the  offence 
thereinafter  mentioned,  was  a  person 
employed  in  the  service  of  the  customs, 
and  that  it  was  the  duty  of  him,  as  such 
person  so  employed  in  the  service  of 
the  customs,  to  arrest  and  detain  all  such 
goods  as  should  be  imported,  which, 
upon  such  importation,  would  become 
forfeited  to  the  king,  by  virtue  of  any 
act  of  parliament  relating  to  the  customs, 
and  which  would  be  liable  to  be  seized  ; 
and  that  the  defendant,  well-knowing, 
SiC.  unlawfully  and  corruptly  solicited 
R.  II.,  being  such  person  so  employed 
in  the  service  ot  the  customs,  when  cer- 
tain goods  should  be  imported,  which, 
upon  importation,  would  be  liable  to  be 
seized  or  forfeited,  to  forbear  to  arrest 
and  detain  the  same,  &c.  :  Held,  that 
inasmuch  as  it  was  not  the  duty  of  every 
jjcrson  employed  in  the  service  of  the 
customs  to  arrest  and  detain  goods 
which  would  be  liable  to  be  seized  as 
forfeited,  this  coimt  was  bad,  for  want 
of  shewing  that  R.  H.  was  a  person 
w  hose  duty  it  was  to  arrest  and  detain 
such  goods.    The  King  v.  Everett.      158 

INNKEEPER. 

1.  Where  a  traveller  went  to  an  inn,  -o-vd 
desired  to  have  his  luggage  taken  into 
the  commercial  room,  to  which  he  re- 
sorted, from  whence  it  was  stolen  : 
Held,  that  the  inn-keeper  was  responsi- 
ble, although  he  proved  that  according  to 
tiie  usual  practice  of  his  house,  the  lug- 
gage would  have  been  deposited  in  the 
guest's  bedroom,  and  not  in  the  com- 
mercial room,  if  no  order  had  been 
given  respecting  it.  Richmond  v.  Smith. 

144 

INSOLVENT. 

See  FoHEioN  Judomext. 

1.  Where  an  insolvent  dies  after  petition 
and  assignment  to  his  provisional  assig- 
nee, but  before  examination  and  assign- 
ment to  his  assignees  in  chief,  Held, 
that  the  assignees  in  chief  take  never- 
theless, all  the  property  assigned  by  the 
provisional  assignee.  Willes  and  Anoth- 
er, Jlssigneea  of  Elliott,  v.  Elliott.         13 

2.  The  Court  refused  to  liberate,  on  mo- 
tion, a  discharged  insolvent,  who  had 
been  arrested  by  his  surety  for  the  ar- 
rears of  an  annuity  accruing  sub.se- 
qiieiitly  to  the  insolvent's  discharge, 
and  paid  by  the  surety.  Freeman  v. 
Burgess,  25 

3.  Where  a  party  is  detained  in  custody 
for  a  judgment-debt,  the  attorney  who 
was  concerned  in  the  cause  for  one  of 
the  detaining  creditors,  cannot,  without 
a  power  for  the  purpose,  sign  for  him 


INDEX- 


565 


the  note   for  sixpences.       Macbtath  v. 
Ellis  and  two  others.  79 

INSURANCE. 

1.  Abamlonment  is  not  necessary  upon  a 
loss  in  an  insurance  on  freight.  Mount 
V.  Harrison.  11 

2.  A  pohcy  of  insurance  stipulated,  "that 
the  g-oods  insured  were  and  should  be 
valued  at  five  tierces  coffee,  valued  at 
27/.  per  tierce,  say  135/.;  that  pohcy  to 
be  deemed  sufficient  proof  of  interest  :" 

Held,  that  the  policy  was  void  under 
19  G.  2.  c.  37.  Murphy  and  another  v. 
Bell.  74 

3.  Where  damage  was  done  to  a  cargo  by 
water  escaping  through  the  pipe  of  a 
steam  boiler,  in  consequence  of  the 
pipe  having  been  cracked  by  frost, — 
Held,  that  this  was  not  an  act  of  God, 
but  negligence  in  the  captain,  in  filling 
the  boiler  before  the  time  for  heating  it, 
although  it  was  the  practice  to  fill  over- 
night when  the  vessel  started  in  the 
morning.   Siordet  v.  Hall  and  others.    87 

4.  A  vessel  insured  from  Sierra  Leone  to 
London,  and  upon  wliich  the  insurance 
was  to  endure  until  she  had  been  moor- 
ed in  good  safety  twenty-four  hours,  ar- 
rived in  the  evening  of  the  18th  of  Feb- 
ruary, and  the  captain  having  orders  to 
take  her  into  the  King's  Dock  at  Dept- 
ford,  moored  her  near  the  dock-gates. 
On  the  following  morning  he   was  in- 
formed at  the  dock,   that  no  order  for 
his  admittance  had   been  received  ;  but 
that  if  it  had,  the   vessel  could   not  be 
then  admitted,  on  account  of  the  quan- 
tity of  ice  in  the  river.     The  order  was 
sent  by  the  Navy  Board  on  the  21st,  but 
on  account  of  the  ice,   the  ship  could 
not  be  moved  until  the  27th,   and  then, 
in    warping    her  towards    the    (lock,    a 
rope  broke,  slie  grounded,    and  was  to- 
tiillv  lost.     The  jury  found  that  the  vi-s- 
Bcl  remained  at  her  moorings  from  the 
18th  to  tlic  27th  of  February  on  account 
of  the  ice,  and  not  for  want  of  an  order 
to  enter   the    dock.     Held,   tliat   upon 
this  finding,  tlie  plaintiff  was  entitled  to 
recover,  for  that  the   place   where  the 
vessel  was  moored,  not  i)eing  the  place 
of  her  iiltim.ile  dcstinaiion,    the    jxdiey 
did  not  cx[>irc  when  she  liad  l)een  there 
in  KJifely  twenty-four   hours  ;  and  «s  the 
vcs-ncl  remained  at  those    moorings  on 
account  of  the  ice,  and  not  waiting  ff>r 
the   order,   the   underwriters  were  not 
discharged   by  the  delay.        Samurl  v. 
The  Unijnl   Exrhiinfrr  Jlssuranrr     Cnin- 


pnni/. 


IW) 


.5.  It  is  the  duty  of  a  party  effecting  an 
insurance  on  life  or  properly,  to  coin- 
munirate  to  the  luiderwrilcr  all  material 
farts  within  his  kuowliilg''  touching  thf 
Buhject  matter  of  the  injunutcc  ;  and  it 


is  a  question  for  the  jury  whether  any 
purticulfr  fact  was  or  was  not  material. 
Lindinau  v.  De.sboruui^h.  •     306 

6.  Where  a  vessel  insured  in  a  vidued 
policy  at  2000/.  received  damage  by 
perils  of  the  sea  which  could  have  been 
repaired  for  1450/.,  but  tlie  jury  found 
tliat  the  vessel  was  not  worth  repaii-ing: 
Held,  that  this  was  a  total  loss,  and  the 
assured  were  entitled  to  recover  the 
sum  at  which  the  vessel  was  valued  in 
the  policy,  .ilkn  and  another.  Assignees 
of  Scott,  a  Bankrupt,  v.  Sugrue.         297 

7.  In  an  insurance  upon  the  life  of  anoth- 
er, the  life  insured,  if  applied  to  for  in- 
formation, is,  in  giving  such  information, 
impliedly  the  agent  of  the  party  insur- 
ing, who  is  bound  by  his  statements, 
and  must  suffer  if  they  are  false,  al- 
though he  is  unacquainted  with  the  life 
insured,  and  the  servant  of  the  insur- 
ance olfice  undertakes  to  do  all  that  i» 
required  by  his  office. 

Plaintiff  effecting  an  insurance  on  the 
life  of  H.,  with  whom  he  was  unac- 
quainted, desired  the  agent  of  the  in- 
surance office  to  do  all  that  was  requis- 
ite. The  agent  knew  H.  well,  and  made 
the  usual  enciuiiics.  One  of  the  terms 
of  the  contract  was,  a  reference  to  the 
usual  medical  attendant  of  the  life  in- 
sured. 

H.  having  given  a  false  reference  ; 
Held,  that  the  plainlilF  could  not  re- 
cover.    Everett  v.  Desborouirh.  518 

JOINT  STOCK  COMPANY. 

1.  Debt  on  bond,  conditioned  for  paying 
plaintiff  10,000/.,  upon  his  forming  a 
company,  and  procuring  purchasers  for 
9000  shares  therein  ;  sucli  company  to 
carry  on  a  distillery  according  to  a  pro- 
cess for  which  a  patent  had  been 
granted. 

IMea,  that  the  patent  cont.ained  a  pro- 
viso, rendering  it  void  if  transferred  to 
more  than  five  ;  that  it  was  intended  the 
said  company  shoulil  consist  of  more 
than  five,  and  be  formed  for  the  pur- 
pose of  enjoying  the  benefit  of  the  let- 
t(  is-|)ateut,  of  acting  as  a  corporate  bo- 
dy, and  dividing  tin-  benefit  of  the  pa- 
tent into  10,0'JO  shares,  transferral)le 
and  assignaljli!  without  charter  from  the 
king  ;  and  that  it  was  corruptly  and  il- 
legally .igreed  between  the  parties,  that 
the  plaintiff  shojild  form  the  company 
for  such  piM'poses,  and  shoidd  sell  the 
9000  shares  ui  ord<T  to  niise  a  larger 
sum  of  money,  inider  pretence  of  car- 
rying on  the  privilege  granted  by  the 
patent. 

Held,  a  bar  to  the  .action.  Duvrrgirr 
V.  h'rthifni,  4.16 

2.  The  defendants  had  I'urrliaspil  the. 
scrip  of  A  mining  conqian)   originated 


566 


INDEX. 


in  fraud,  atnl  h:\il  attended  one  meeting' 
of  the  company;  but  they  never  sig'iied 
the  jiartncrshii)  died,  were  innocent  of 
the  fraud,  and  tr:insferred  their  scrip 
hefore  the  phiintiff  commenced  an  ac- 
tion for  goods  furnished  to  the  company 
after  defendants  had  purchased  their 
scrip: 

Held,    they    were    liable.      Ellis  v. 
Schnueck  and  Thomas.  526 

JOINT  TENANT. 
See  Rkplktin. 

JUROR. 

Alienage  is  u  ground  of  challenge  to  a  ju- 
ror; and  if  the  party  has  an  opportunity 
of  making  his  challenge,  and  neglects  it, 
he  cannot  afterwards  make  the  objec- 
tion. Semble,  That  since  the  7  G.  4.  c. 
60.  s.  27.  alienage  is  not  a  ground  even 
of  challenge  to  a  special  juror.  The  King 
V.  Sutton  and  others.  252 

JUSTICES. 

An  order  of  justices  made  under  the  5  G. 
4.  c.  71.  stated,  "that  the  justices,  after 
due  examination  had  on  outli,  having  ad- 
judged the  legal  place  of  settlement  of 
a  pauper  lunati",  confined  in  a  lunatic 
asylum,  to  be  in  M.,  didtliereby  require 
tlie  churchwardens  and  overseers  of  M. 
to  pay  to  the  treasurer  of  the  lunatic 
asylum  10/.  16s.  due  for  twenty-four 
weeks'  maintenance,  &c.,  being  at  the 
rate  of  9.v.  per  week,  and  to  pay  the  same 
weekly  sum  during  so  long  a  time  as  the 
pauper  should  remain  therein."  The 
parish  of  M.  appealed  against  this  order, 
and  in  their  notice  of  appeal  described 
it  as  an  order  of  settlement  and  mainte- 
nance: Held,  that  as  the  parisli  of  M. 
had  treated  this  as  the  order  of  settle- 
ment, it  must  be  presumed  tliat  there  was 
no  other  order,  and  that,  therefore,  the 
words,  "  having  adjudged,"  must  be  un- 
derstood as  words  of  present  adjudica- 
tion, and  that  the  order  was  good  in  this 
respect:  Held,  secondly,  that  so  much 
of  the  order  as  was  retrospective  was 
bad,  but  that  it  was  good  for  the  residue. 
The  King  v.  The  Inhabitants  of  Maul- 
den.  155 

LANDLORD  AND  TENANT. 

See  Distress. 

1.  Where  a  tenant  entered  under  an  agree- 
ment for  a  lease  for  seven  years,  which 
was  never  executed:  Held,  that  he  was 
not  entitled  to  notice  to  quit  at  the  end 
of  the  seven  years.  Doe  dem.  Tilt  v. 
Stratton.  36 

2.  A.  demised  to  B.  the  first  and  second 
floor  of  a  house  for  a  year,  at  a  rent 
payable  quarterly.  During  a  current 
quarter,  some  dispute  arising  between 


tlic  parties,  R.  told  A.  that  she  would 
quit  immediately.  The  latter  answered 
that  she  might  go  when  she  pleased.  B. 
quitted,  and  A.  accepted  possession  of 
the  apartments:  Held,  tliat  A.  could  nei- 
ther recover  the  rent,  which,  by  virtue 
of  the  original  contract,  would  have  be- 
come due  at  tiie  expiration  of  the  cur- 
rent quarter;  nor  rent  pro  rata,  for  the 
actual  occupation  of  the  premises  for 
any  period  short  of  the  quarter.  Grim- 
man  v.  Legge.  229 

3.  Phiintiff',  wlio  had  entered  on  premises 
under  an  agreement  for  a  lease,  admitted 
a  charge  of  half  a  year's  rent  in  an  ac- 
count between  him  and  his  landlord: 
Held,  that  this  constituted  him  a  tenant 
from  year  to  year,  and  liable  to  distress. 
Cox  v.  Bent  and  others.  410 

4.  A  payment  of  ground-rent  by  the  occu- 
pier, in  default  of  the  mesne  tenant,  is 
not  the  less  a  compulsory  payment  be- 
cause the  ground-landlord  on  demanding 
it  allows  the  occupier  time  to  pay. 

Growing  rent  may  be  discharged  by 
such  payments  as  well  as  rent  actually 
due. 

Where  growing  rent  has  been  reduced 
by  payments  of  land-tax,  &c.  if  the  land- 
lord distrains  for  the  whole  sum  reserv- 
ed, the  tenant  may  properly  sue  in  case. 
Charles  Carter  v.  Robert  Carter  and 
others.  479 

5.  A  landlord  having  treated  an  occupier 
of  his  land  as  a  trespasser,  by  serving 
him  with  an  ejectment,  cannot  after- 
wards distrain  on  him  for  rent,  although 
the  ejectment  is  directed  against  the 
claim  of  a  third  person,  who  comes  in 
and  defends  in  lieu  of  the  occupier,  and 
the  occupier  is  aware  of  that  circum- 
stance, and  is  never  turned  out  of  pos- 
session.    Bridges  v.  Smyth.  481 

LAND  TAX. 

See  Distress. 

LEASE. 
See  Ejectmest. 
He  who  lets,  agrees  to  give  possession, 
and  if  he  fiuls  to  do  so,  the  lessee  may 
recover  damages  against  him,  and  is  not 
driven  to  bring  an  ejectment.  Coe  v. 
Clay.  492 

LIBEL. 

1.  A  jury,  directed  to  find  whether  a  libel 
submitted  to  their  consideration  were  a 
privileged  communication,  and  if  so, 
whether  it  were  attended  with  express 
malice,  found  for  the  plaintiff"  50/.  da- 
mages, and  that  the  defendant  was  not 
actuated  by  express  malice:  Held,  that 
the  plaintiff"  was  entitled  to  retain  his 
damages.  Samuel  Blackburn  v.  John 
Blackf/urn.  14 

2.  The  plaintifT  having  advertised  for  sale 


INDEX. 


567 


a  bond,  executed  to  him  by  the  defeml- 
ant,  the  payment  of  which  had  been  re- 
sisted in  a  long  course  of  litigation  in 
which  the  validity  of  the  bond  had  been 
disputed,  tlie  defendant  published, 
among  the  persons  assembled  to  bid  for 
the  bond  at  an  auction,  a  statement  of 
all  the  circumstances  under  which  the 
bond  was  given,  and  alluding  to  the 
plaintiff,  concluded — "  His  object  is 
either  to  extract  money  from  the  pocket 
of  an  unwary  purchaser,  or,  what  is 
more  likely,  by  this  threat  of  publica- 
tion, to  extort  money  from  me :" 

Held,  that  tliis  exceeded  tlie  latitude 
allowed  for  privileged  communications, 
or  observations  on  titles  by  a  party  in- 
terested; and  that  it  was  a  libel,  al- 
though no  express  malice  was  proved. 
Robertson  v.  M'Dougall.  106 

3.  A.  having  discharged  his  ser\ant,  and 
hearing  that  he  was  about  to  be  engaged 
by  B.,  wrote  a  letter  to  B.,  and  informed 
him  that  he  had  discharged  him  for  mis- 
conduct. B.,  in  answer,  desired  further 
information.  A.  then  wrote  a  second 
letter  to  B.,  stating  the  grounds  on 
which  he  had  discharged  the  servant. 
In  an  action  by  the  servant  against  A. 
for  a  libel  contained  in  this  letter,  it  was 
held,  that  assuming  the  letter  to  be  a 
privileged  communication,  it  was  pro- 
perly left  to  the  jury  to  consider,  whe- 
ther the  second  letter  was  written  by  A. 
bona  fide,  or  with  an  intention  to  injure 
the  servant.     Putthon  v.  Jones.  303 

4.  It  is  a  libel  to  publish  of  a  Protestant 
Archbishop,  that  he  attempts  to  convert 
Catholic  priests  by  offers  of  money  and 
preferment.  Archbishop  of  Tuam  v. 
Bobtson  and  Another.  350 

5.  In  an  action  for  a  libel,  it  is  no  plea,  that 
the  defendant  had  the  libellous  state- 
ment from  another,  and  upon  publica- 
tion disclose«l  the  author's  name.  Sir 
yV.  De  Crupifriiy  v.   JVelUslry.  474 

LIEN. 

A  party,  who  having  a  lien  on  goods, 
cauACs  th<-m  to  be  taken  in  execution  at 
his  own  Buit,  loses  his  lien  tiicrcby,  al- 
though the  gocxLs  arc  sold  to  him  under 
tJic  execution,  and  are  never  removed 
ofT  hi»  prcmiftctt. 

Quxrc,  Whether  a  trainer  of  nice- 
horses  has  a  lien  on  tlic  horses  for  his 
•erviccs  in  training.  Juatbs,  Jtsif^iur 
of  ImwIoii,  a  Bankrupl,  v.  JxUour  anil 
ifuser.  3M8 

LIMITATIONS. 

1.  To  a  declanition  in  trover  !)y  an  admin- 
i.strator,  alleging'the  grant  of  Icttei-s  of 
administration  tf>  the  idaintifl',  and  that 
the  (lefcndant  knowing  llic  goods  to 
have  been  the  property  of  tlic  intestate 
in  his  life-time,  and  of  tlie  plainlifT  -m 


administrator  since  his  death,  afterwards, 
and  after  the  death  of  the  intestate,  to 
wit,  on,  &c.,  converted  the  same  goods, 
a  plea  of  not  guilty  of  the  premises 
within  six  years  is  bad  upon  special  de- 
murrer. Joseph  Pratt,  Administrator  uf 
Jinn  Pratt,  v.  Swaine.  219 

2.  Where  money,  which  under  a  power 
in  a  will  was  directed  to  be  raised  by 
the  sale  of  an  estate,  and  to  be  invested 
by  trustees  with  the  consent  by  deed  of 
the  party  interested,  was  invested  partly 
in  1783,  without  any  such  consent  by 
deed,  and  partly  in  .806,  by  tl>e  person 
interested  himself,  the  ti'ustee  having 
become  non  compos,  and  an  act  of  par- 
liament, reciting  these  investments,  ap- 
pointed a  new  trustee.  Held,  that  neither 
the  act  nor  the  lapse  of  time  cured  the 
defective  execution  of  the  power,  as 
against  a  writ  of  formedon. 

The  issue  was,  whether  the  money 
had  been  invested  with  the  consent  of 
the  cestui  que  trust,  according  to  the 
directions  of  this  will :  Held,  that  it 
was  correct  to  direct  the  jury  to  con- 
sider, whether  it  had  been  invested  with 
the  consent  of  the  cestui  que  trust  ma- 
nifested by  deed.  Cliolmcley  v.  Paxton 
and  Others.  364 

LONDON  COURT  OF  CONSCIENCE 
ACT. 

An  officer  of  the  sheriff  of  Middlesex,  who 
resided  and  carried  on  his  business  in 
Middlesex,  but  who  had  also  an  ofKce  in 
London, 

Held,  "to  seek  his  livelihood  in  Lon- 
don," within  the  meaning  of  the  London 
court  of  conscience  act.  Bushnell  and 
Others  V.  Levi.  459 

MAGISTRATES. 

The  plaintiff  having  sued  a  magistrate, 
gave  notice  of  his  cause  of  action;  that 
the  magistrate  had  unlawfully  convicted 
him  of  not  paying  wages,  and  had  issued 
a  warrant  for  seizing  his  goods  directed 
to  J.  Bark,  under  which  they  were  seiz- 
ed accordingly. 

The  warrant  having  been  directed  to 
tlie  conntable  of  Halifax,  and  not  to  J. 
Bark: 

Held,  tlnd  the  notice  was  insufficient. 
Jlkcdy.  Stoch.s,  Jiur.itow,  and  Oihirs.    60 

MALICIOUS  IN.H'RIKS  ACT, 
(;<i;»KTHr<:TloN    OF. 

Defendant,  as  fenreeve,  having  the  rare  of 
certain  lands,  over  which  the  |)lainti<r 
was  making  a  road,  asked  him  by  what 
authority  he  acted;  the  plaintiff  said,  by 
authority  of  the  magistrates,  but  did  not 
exhibit  any  warrant,  whereupon  the  de- 
fendant a|)preheiided  and  took  him  be- 
fore a  magistrate:  Mrl.l,  that  defendant 
w  as  entitled  to  notice  of  action  under  7 
8.  8  (;.   4.  c.  30,  although  the  plaintiff 


568 


INDEX. 


was  not  commilting  a  mulicioiis  injury. 
ll'rii^htw  ll'a/rs.  4G2 

MANDAMl'S. 

1.  ^lundannis  granlod  to  compel  a  bishop 
to  allow  inspection  of  his  i-cg'istcr  of  pre- 
sentations and  institutions  to  a  living  in 
his  diocese,  by  a  person  clainiin.a;  the 
right  of  patronage,  although  the  i)isliop 
also  claimed  that  right.  7'/ie  Kim^  v. 
TlnBLshopofniy.  "  158 

2.  To  a  mandamus  to  admit  A.  R.  into  the 
office  of  churchwarden,  reciting  tliat  he 
had  l)ccn  duly  elected,  a  return  that  A. 
B.  was  not  duly  elected,  is  good.  ^J'lie 
King  V.  Williams.  327 

MARllIAGE. 

Mlicre  a  marriage  was  solemnized  by  li- 
cense between  a  man  and  woman,  the 
former  being  a  minor,  whose  fatlicr  was 
living,  and  who  did  not  consent  to  tiie 
marriage:  Held  that  it  was  nevertheless 
valid,  the  4  CI.  4.  c.  75  s.  16.,  whicli  re- 
quires such  consent,  being  directory 
only. 

Where  a  marriage  of  a  female  pauper 
is  brought  about  by  the  fraud  of  parish 
officers,  tliat  does  not  prevent  iier  from 
acquiring  a  settlement  by  the  marriage 
in  tlie  husband's  parish.  The  King  v. 
T/ic  Inhabitants  of  Birmingham.         151 

MASTER  AND  SERVANT. 

See  Libel. 

MONEY  HAD  AND  RECEIVED. 

(SfcTJANKnuPT,  Distress,  Powtn, 
SuKRiFF,  Stakeholder. 

MORTGAGE. 

See  Ejectment. 

1.  In  taxing  costs  upon  a  mortgage  trans- 
action, tiie  mortgagee  is  not  allowed  the 
expense  of  a  declaration  of  trust  from 
him  to  a  cestui  que  ti-ust  who  lends  the 
money. 

The  assignment  of  a  rnortgage  must 
have  an  ad  valorem  stamp,  if  it  be  ac- 
companied with  any  new  security,  or 
any  additional  sum  be  advanced.  Mar- 
tin, Demand/int;  Baxter,  Tenant;  Grubb 
and  Wife,  Vouchees.  403 

2.  M'here  a  mortgagor  remains  in  posses- 
sion, and  the  money  is  not  paid  on  the 
day  .stipulated,  the  mortgagee,  who  has  a 
power  of  entiy  and  sale  on  non-payment, 
may  eject  the  mortgagor  without  notice 
to  quit,  or  demand  of  possession.  Doe 
dem,  Fisher  v.  Giles  and  Others.  485 

NEW  TUIAL. 

The  Court  will  not  grant  a  new  trial  on  the 
ground  that  witnesses,  Ijy  whose  testi- 
mony the  verdict  was  obtained,  have 
been  indicted  for  perjury  in  the  caiise. 
Sceky  t.  Mayhew.  72 


.     NOTICE. 

Sec  MA(iISTUATKS. 

NOTICE  TO  QUIT. 

See  Landlord  and  Tenant,  Elegit, 
MoHT(iA(iE,  Overseers. 

OUTLAWRY. 

A  party  outlawed  in  K.  B.  in  an  action  to 
recover  the  arrears  of  an  annuity  cannot 
be  heard  in  C.  P.  on  a  motion  to  set  aside 
the  annuity.     Loukes  v.  Holbeach.         26 

OVERSEERS. 

1.  Where  a  pauper,  who  had  been  per- 
mitted to  occujjy  a  parish  house,  went 
away  from  home:  Held,  that  the  over- 
seers might  lawfully  enter  and  resume 
possession,  without  giving  any  notice  to 
quit,  and  were  not  bound  to  pursue  the 
mode  pointed  out  by  the  59  G.  3.  c.  12. 
s.  24.  Wildhor  v.  Rainfurth  and  Jlno- 
ther.  144 

2.  An  assistant  overseer,  elected  and  ap- 
pointed under  the  statute  59  G.  3.  c.  12., 
at  an  annual  salary  of  10/.  will  gain  a  set- 
tlement by  serving  such  office  for  a  year. 

But  the  appointment  in  writing,  un- 
der the  hands  and  seals  of  the  justices, 
to  such  an  office,  with 'an  annual  salary 
annexed  to  it,  requires  a  stamp  of  21. 
The  King  v.  'Jlte  Inhabitants  of  Lew.  326 

3.  An  assistant  overseer  appointed  under 
the  59  G.  3.  c.  12.,  and  having,  by  vir- 
tue of  his  office,  the  poor-rate  in  his  cus- 
tody, is  liable  to  a  ])enalty  for  refusing 
to  produce  it  to  an  inhabitant  when  law- 
fully demanded,  according  to  the  17  G. 
2.  c.  3. 

Where  a  declaration  alleged  that  de- 
fendant was  assistant  overseer;  that  a 
rate  for  the  relief  of  the  poor  was  made 
and  duly  allowed;  and  although  defend- 
ant, as  such  assistant  overseer,  had  the 
rate  in  his  possession,  and  although  plain- 
tiff, at  reasonable  time,  demanded  an  in- 
spection of  it,  and  tendered  Is.,  yet  de- 
fendant refused  to  produce  it,  whereby 
he  forfeited  20/. :  lleld,  on  motion  in 
arrest  of  judgment,  that  the  count  was 
sufficient;  for  if  tiie  defendant  had  the 
rate  in  his  custody  as  assistant  overseer, 
it  miglit  be  presumed  that  it  was  his  du- 
ty to  produce  it  when  lawfully  demand- 
ed.    Bennett  v.  Edwards.  329 

PALACE  COURT. 

Where  in  an  action  commenced  in  the  P.a- 
lace  Court,  and  afterwards  removed  into 
K.  B.,  the  plaintiff  recovers  less  than  the 
sum  for  which  lie  lield  the  defendant  to 
bail,  the  Court  of  K.  B.  has  no  power  to 
allow  the  defc  ndant  his  costs  under  the 
statute  43  G.  3.  c.  46,  s.  8.  Hundley  v. 
Let'y.  323 


INDEX. 


569 


PARTNERS. 

A.,  B.,  and  C.  carried  on  business  in  co- 
partnership as  factors  and  commission- 
merchants  in  England  and  America;  m 
England,  under  the  firm  of  A.,  C,  and 
Co.;  in  America,  in  the  name  of  C.  alone. 
When  C.  went  to  America,  he  had  writ- 
ten instructions  from  his  partners,  one  of 
which  was,  «'Itis  understood  that  our 
names  are  not  to  appear  on  either  bills 
or  notes  for  the  accommodation  of  others, 
and  that  they  should  appear  as  litUe  as 
possible  on  paper  at  all,  and  then  only 
as  regards  direct  transactions  witli  the 
house  here."     A.,  B.,  and  C,  in  order 
to  obtain  consignments  from  America, 
made  advances  or  granted  drafts  or  bills 
of  exchange,  or  indorsements  of  them, 
to  their  principals  on  the  security  of  the 
goods  consigned.     In  order  to  obtain  a 
consignment  from   W.,    C.  in  his  own 
name  indorsed  bills  for  him,  which  were 
to  be  provided  for  by  others  drawn  by 
W.  on   A.,    C,   and   Co.  in  England, 
which  were  to  be  provided  for  by  the 
proceeds  of  the  consignment.     Before 
the  latter  bills  were  presented  for  ac- 
ceptance, A.  and  B.  had  become  bank- 
rupts:   Held,    that  the  indorsement  of 
the  bills  by  C.  must  be  considered  as  an 
indorsement  by  the  firm,  and  that  they 
were  liable  upon  those  bills.    The  Presi- 
dent, Directors,  and  Company  of  the  Bank 
of  the    Stale   of  South   Carolina,  in  the 
United  States  of  America,  v.  John  Jhhton 
Case,  John  Jackson,  and  William  Brown, 
Jlssiimees  of  the   Estate  and  Effects   oj 
Thomas    Crowder  and   Henry    Thomufi 
Perfect,  Banknijjts.  256 

PARI  Y   \VAI.L. 

Where  an  ancient  wall  wa.s  pulled  down 
by  one  of  the  two  tenants  in  common, 
with  tiie  intention  of  rebuilding  the 
same,  and  a  new  wall  was  built  of  a 
greater  height  llian  the  old  one;  it  was 
held,  that  tliis  w;.s  not  such  a  total  de- 
struction of  tl»e  wall  as  to  entitle  one  of 
the  two  tenants  in  conunon  to  muinlain 
trespass  against  tlie  other.  Cubill  v. 
Pfn-ter.  ~  ^  ^ 

PAVIN(i  ACT. 

The  metropolis  paving  art,  57  C;.  2.  c.  29. 
s  13f).  h.i»  repealed  the  Cimk  liberty 
paving  act,  52  V,.  3.  c.  14.  as  to  the  tunc 
of  commencing  actions,  /iwr/w  v.  Cartir. 

488 

PAYMENT. 

The  defendant  h.id  given  tlic  plainlifT bills 
for  goods,  wlii(  h  bills  had  l>crn  tnins 
ferrcd  to  a  thini  person;  but  at  the  lime 
of  the  trial  of  an  artion  for  the  value  of 
the  goods,  though  not  at  the  commcncc- 
VOL.   XV. 


ment  of  the  action,  they  were  again  in 
the  plairitift''s  hands  overdue  and  un- 
paid by  the  defendant :  Held,  he  was 
liable,  notwithstantling  he  had  given  the 
bills.     Burden  v.  Halton.  37 

PLEADING. 

.  Writ  of  entry  sur  abatement  of  six  mes 
suages,  six  mills,  8cc. 

Plea,  tliat  R.  S.  devised  the  said  mes- 
suages, niiUs,  &c.  and  parcel  of  the  land, 
to  T.,  who  devised  them  to  S.,  wife  of 
R.  D.  C,  who  levied  a  fine  to  the  te- 
nant. ,      .  ,  -n 

The  plea  concluded  with  a  verifica- 
tion, and  a  prayer  of  the  messuages, 
&.C.,  and  land,  in  the  count. 

The  fine  set  out  in  the  plea  described 
the  premises  as  four  messuages,  one 
cloth  mill,  &c.,  and  the  statement  of  the 
fine  ended  with  zprout  paid  per  recor- 

dum.  ,     , , 

Held,  that  the  plea  was  not  double: 
Tliat  the  praver  for  judgment  of  the 
messuages  and  land  in  the  count  did  not 
vitiate  the  plea,  notwithstanding  the 
commencement  of  the  plea  apphed  only 
to   the  messuages  and  parcel   of  the 

land:  , 

That  it  was  not  necessary  for  the  piea 
to  conclude  with  a  prout  patct,  tliat  al- 
legation being  introduced  before  the 
conclusion:  and 

Tliat  the  premises  in  the  fine  were 
sufliciently  identified  with  those  in  Uie 
introductory  part  of  the  plea.  Rowks 
V.  Lusty.  T' 

2.  Assumpsit:  Held,  that  a  plea  that  the 
defendant's  undertaking  w:is  for  the  de- 
fault of  another,  williout  writing,  and 
without  consiilcration,  miglit  be  plead- 
ed, alUiougii  the  facts  might  have  been 
given  in  evidence  under  the  general 
issue. 

So,  a  i)lea  that  the  pci-son  lor  whom 
the  defeiuhmt's  undertaking  was  given, 
was  a  feme  covert.  Mai^^s,  Jlssif^rnec  oJ 
T.  JIoivcll  and  J.  Howell,  Bankrupts,  v. 

•^'"^•■'-  .  „        1     .i"*^ 

3.  I.ibel.     The    declaration    idlcged,   that 

will  leas  divers  persons  had  been  asso- 
ci:ited  togetlur,  under  the  name  ot 
"Ihe  Society  of  (;u:u-dians  for  tlic  I'ro- 
tection  of  Trade  against  Swindlers  and 
Sharpers,"  and  the  defendant  under  pre- 
tence of  l)eing  secretary  of  llic  society, 
had  from  lime  to  time  publislied  printed 
reports  for  the  purpose  of  aniiuuiicmg 
to  the  sorielv  llie  iwnies  of  sueli  persons 
:is  were  deemed  swimlleis  and  sharpers, 
and  improper  persons  to  be  proposed  as 
meinl)ers  of  the  society;  and  wliereas 
the  piaintilV  was  a  merchant  of  good 
rharacter,  vet  the  dcreiidant  falsely  aii<l 
Mialiriouslv'p"il''''''l"'>  •>''=""'  ''""Ci'.'"'"".^" 
i1k  plainiiir,  in  his  ln»dc  and  busincis, 
the  follow ing  libel  — 


570 


INDEX. 


♦'  Soc'kIv  of  (iu;irili;iiis  for  tlic  Pro- 
tectit  i\  of  Tntile  against  Swindlers  und 
Sharpers.  I,  E.  F.,  am  directed  to  in- 
form you,  tluit  the  persons  usiiifj  tlie 
firm  of  (joldstein  (meaning  the  i)laintiH') 
are  reported  to  tlie  society  as  improper 
to  be  proposed  to  be  balloted  for  as 
members  lliereof;"  thereby  meaning 
that  t]>e  plaintiff  was  a  swindler  and  a 
sharper,  and  an  improper  j)crson  to  be 
a  member  of  the  said  society: 

Held,  that  tlie  innuendo  could  not  be 
supported  without  a  jirevious  averment, 
that  it  was  the  custom  of  the  society  to 
designate  swindlers  and  sharpers  by  the 
terms,  hitprojnr  persons  to  be  niemljcrs  of 
that  sockfi/,  and  tliut  it  did  not  appear 
that  the  society  described  in  the  libel 
was  the  society  described  in  the  intro- 
ductor}'  ]iart  of  the  declaration.  Gold- 
stein V.  Foss  and  Another .  53 

4.  In  an  action  ag-ainst  the  sheriff  for  an 
escape,  it  is  sutHcient  to  allege,  that  the 
writ  for  the  caption  of  the  escaper  was 

duly  indorsed  for  bail  for /.,  without 

adding,  "  by  virtue  of  an  affidavit  made 
and  filed  of  I'ccord."  Wilcoxon  v. 
Nightingale.  57 

5.  Where  defendant  pleaded  delivery  of  a 
pipe  of  wine  in  satisfaction  of  the  plain- 
tiff's demand,  the  Court  refused  to  per- 
mit plaintiff  to  sign  judgment  as  for 
want  of  a  plea,  upon  aifidavit  that  the 
jilea  was  false.  Smith  and  Others  v. 
Backwell.  62 

6  The  assignee  of  the  reversion  suing  de- 
fendant in  covenant,  alleged  that  the 
lessor  was  seised  (without  stating  of 
what  estate),  and  being  so  seised,  devi- 
sed to  plaintiff  in  fee. 

After  verdict:  Held,  a  sufficient  alle- 
gation of  title.  Harris  and  Jlnother  v. 
Beavan.  96 

7.  Where,  to  an  action  on  a  bill  f)f  ex- 
change, the  defendant  pleaded  a  ramb- 
ling demurrable  jilea,  which  appeared 
to  be  a  trick  on  the  face  of  it,  the  (Jourt 
ordered  it  to  be  struck  out  on  an  affida- 
vit of  its  falsehood,  giving  the  defend- 
ant leave  to  plead  dc  novo,  and  requiring 
him  to  try  at  the  next  sittings.  Jones 
and  Another  v.  St  add.  103 

8.  Plaintiff  alleged  that  defendant,  having 
agreed  to  cfiiivey  her  safely  by  his  coacli 
from  London  to  Jilackheath,  neglected 
his  duty,  l)y  liu'owiiig  her  down,  fie. 
Defendant's  coach  ran  from  (Sharing 
Cross  to  IJlackiieatli,  and  plaintiff  got 
up  at  the  Klephaiit  and  Castle^  but  de- 
fendant had  inscril)cd  on  iiis  coach 
"London  to  I5lackheatli;"  Held,  no 
variance.     J)iteliani\.  Chivis.  121 

9  I'hc  plaintiff  in  nuarn  impedit  having 
(raced  his  title  through  a  period  of  two 
•^cnturies,  and  the  defeiiclant  ha^ing,  in 
iorly-three  pleas,  taken  issue  on  ever}' 
alltgaUun  in  the  dtclaralion,  tltough  the 


plaintiff's  claim  rested  solely  on  (lie  va- 
liility  of  a  deed  of  1672,  and  the  de- 
feiubnt  could  h:ivc  no  writ  to  the  bishop, 
unless  he  succeeded  in  setting  aside  that 
deed,  the  Court,  after  the  declaration 
had  been  ameniled  twice,  and  after  trial 
had,  rescinded  the  rule  to  plead  several 
matters,  (hilli/  and  Others  v.  Bishop  of 
Exeter  and  Iknvling.  68 

10.  A  suit  commenced  in  K.  Ti.  by  latitat, 
may  be  well  continued  by  a  bill  of  Mid- 
dlesex, sued  out  by  the  plaintiff,  with 
intent  to  implead  the  defendant  for  the 
same  causes  of  action.  Fage  v.  Ni-io- 
man.  274 

11.  Trespass  for  mesne  profits.  Plea,  a 
judgment  recovered  by  defendant  in 
1822  against  A.;  an  elegit  sued  out 
thereon;  an  inipiisition  held,  whereby 
it  was  found  that  A.,  at  the  time  when 
the  judgment  was  recovered,  was  seised 
for  fife  of  (inter  alia)  the  premises  men- 
tioned in  the  declaration,  and  that  the 
sheriff  delivered  those  premises  to  the 
defendant.  Replication,  that  in  1820, 
A.,  by  indenture,  bargained  and  sold, 
inter  alia,  the  premises  mentioned  in  the 
declaration  to  the  plaintiff:  that  he  en- 
tered and  continued  in  possession  imtil 
the  committing  of  the  trespasses.  The 
defendant  craved  oyer  of  the  indenture; 
and  it  thereby  appeared,  that  for  the 
purpose  of  securing  an  annuity  to  B., 
A.  in  1819  had  conveyed  the  premises 
in  the  declaration  mentioned  to  li.  for 
100  years,  and  that  subject  thereto  he 
conveyed  them  to  the  plaintiff  for  bet- 
ter securing  a  second  annuity  granted 
by  the  deed.  Upon  demurrer,  the  re- 
plication was  held  to  be  good,  inasmuch 
as  it  shewed  that  the  plaintiff  was  in 
possession  at  the  time  when  the  trespass 
was  committed;  that  A.  had  no  interest 
in  tlie  premises  at  the  time  when  the 
judgment  was  obtained  against  him; 
that  the  defendant,  consequently,  could 
derive  no  title  from  him,  and  was  a 
wrongdoer.  Chut/ield  v.  Parker  and 
Cotterell.  _  290 

12.  Debt  lies  against  an  executrix  upon  a 
cause  of  action  accruing  after  the  death 
of  the  testator. 

Where  an  executrix  referred  to  arbi- 
tration to  be  finally  determined  on,  cer- 
tain disputes  and  differences  respecting 
certain  unsettled  accounts,  and  the  arbi- 
trators, without  finding  assets,  awarded 
her  to  pay  a  certain  sum:  Held,  that 
jdene  administravit  was  no  bar  to  an  ac- 
tion f)n  tlic  award,  liiddell  v.  Sultott, 
Ejxculrix  of  Sutton.  416 

13.  In  an  action  against  the  assignees  of  a 
bankrupt,  the  Court  refused  to  permit 
the  defendants  to  plead  nan  est  factum, 
and  that  the  premises  did  not  come  to 
them  by  assignment.  If'liale  V.  Lenny 
and  O'iherSf  Jisit^nees,  347 


INDEX. 


571 


14.  If  it  appears  on  the  *hoIe,  that  tlie 
condition  ot"  a  bail-bond  is  to  appear  in 
the  Common  Fleas,  it  may  be  described 
as  such  in  the  declaration,  although  the 
expression  on  the  bond  is,  "  to  appear 
before  our  lord  the  King  at  Westmin- 
ster," instead  of,  "  before  the  justices  of 
our  lord  the  King,"  Crofts  v.  Slockley 
and  Another,  356 

15.  \ariance.  Evidence  that  according  to 
the  custom  of  the  trade  the  plaintiffs  de- 
livered coals  to  N.  H.  daily,  and  that  at 
the  end  of  every  month  he  gave  a  bill, 
payable  in  two  months. 

Held,  not  suflicient  to  charge  defend- 
ant upon  a  guarantee  for  the  payment  of 
coals  to  be  delivered  to  N.  H.  at  a  credit 
of  two  months  from  the  delivery.  HoH 
and  Another  v.  Caroline  JMarifHadlcy.  367 

16.  In  a  declaration  on  a  bail-bond,  it  is 
not  necessary  to  aver  that  the  writ  on 
which  defendant  was  arrested  was  issued 
on  an  aftidavit  of  debt,  and  indorsed  with 
the  sum  sworn  to.  Sharpe,  Assignee  of 
the  Sheriff  of  Middlesex,  v.  Abbey  and 
Others.  413 

17.  Where  the  plaintiff's  title  to  an  ad- 
vowson  was  traced  in  quare  impedit 
through  a  period  of  two  centuries,  and 
the  def(.-ndanl's  claim  arose  on  the  alle- 
ged invalidity  of  a  deed  of  1672,  the 
Court  would  not  allow  him  to  traverse 
all  the  allegations  in  the  declaratidn,  or 
to  ple:id  more  pleas  than  were  necessary 
to  contest  the  deed  of  1672.  Gully  and 
Others  v.  The  Bishop  of  Exeter  and  IJoiv- 
ling.  360 

18.  Declaration  amended  by  allowing  plain- 
tifl's  to  declare,  on  the  same  cause  of  ac- 
tion, as  survi\  irig  partners  instead  of  ad- 
ministratrixes. Taylor  and  Others,  Ail- 
minintralrixea  of  Folder,  V.  J. yon.         461 

19.  A  plea  false  on  the  face  of  it  may  be 
trcatrd  as  a  nullity.  I'erc  and  Others  v. 
Ciird.n.  4.H3 

20.  A  defendant  may  plead  matter  puis 
darrein  continuance,  not  witlistanding  an 
order  to  rejoin  issuably.  Jtri,iiiit  v.  Sir 
John  I 'erring,  4H3 

POOR  I^ATK. 

See  AlTKAF.. 

The  7  C;.  3.  c.  37.  which  enacts,  liiat  cer- 
tain lands  to  be  embanked  from  the  riv- 
er Thames  shall  be  "Irce  from  all  taxes 
and  assessments  whatsoever,'"  exeiii|ils 
the  occupiers  of  premises  built  on  those 
lands  from  the  payment  of  poor-nitcs  in 
respect  of  such  occupation.  Thr  h'inc; 
V.  The  London  (ia»-ti^ht  and  f'nkc  Com- 
pany. l'>^ 

POWKR  OF  ATTOHNF.Y. 

Defendants  entered  into  an  agreement 
with  C.  to  carry  on  for  them  certain  mi- 
ning speculations  in  America, — furnish- 
ed him  with  inslnirlions, — a  letter  au- 
thorising   him    to    draw    on    them    for 


10,000/.,  and  a  power  of  attorney  of  the 
most  extensive  description,  "to  take 
and  work  mines,  to  purchase  tools  and 
materials,  and  erect  the  necessary  build- 
ings, and  to  execute  any  deeds  or  in- 
struments he  might  deem  necessary  for 
the  purpose." 

C.  after  he  had  raised  10,000/.  under 
the  letter  of  authority,  obtained  of  plain- 
tifl  in  America  1500/.  which  he  applied 
to  the  defendants'  use,  and  for  the 
amount,  drew  bills  on  defendants,  which 
he  indorsed  to  plaintiiV.  He  did  not  shew 
the  letterofauthority  to  the  plaintiiT;  but 
there  were  no  indorsements  on  it  of  sums 
previously  raised,  and  it  did  not  appear 
that  the  plaintiff  knew  that  any  money 
had  been  raised  before  by  C:  the  de- 
fendants refused  to  accept  the  bills. 

Held,  that  plaintiff  was  entitled  to  re- 
cover 1500/.  from  defendants,  as  money 
had  and  received  to  his  use.  IVithington 
v.  Herring  and  Others.  492 

PRACTICE. 

See  AmxT^sT.  TuialatBah.  Bail.  Costs. 
Evidence.  Execctiox.  Insolvent. 
Pleading.     TuovEn. 

1.  Where  a  cause  is  made  a  remanet  at 
the  assizes  a  new  notice  of  trial  is  ne- 
cessary.    Gai7is  V.  Bilson.  24 

2.  An  application  to  set  aside  an  attach- 
ment for  not  bringing  in  the  body,shouId 
be  grounded  on  an  affidavit  that  it  is 
made  at  the  expense  of  the  bail.  Tlie 
King  v.  Sheriff  of  London,  in  Wilson  v, 
Goldstein  and  Jliiother.  27 

3.  The  Court  refused  to  set  aside  a  bail- 
bond  on  the  ground  that  the  defendant 
had  been  arrested  in  the  'I'ower  Ham- 
lets by  virtue  of  a  writ  whicli  had  no 
non  omittas  clause.     Jhll  v.  Jacobs.     68 

4.  An  artidavit  of  the  caption  of  a  fine  ta- 
ken before  a  consul  abroad,  is  insuf- 
ficient. Kx  parte  Lady  Hutchinson,  Con- 
usee.  87 

.'5.  Adidavit,  that  defendant  w.as  indebted 
to  plairitifV  in  20/.,  for  money  lent  on  a 
hill  of  exchange,  drawn  by  S.,  accepted 
by  defendant,  and  overdue  and  unpaid  : 
Held,  sufficient,  without  saying  "lent  to 
defendant."     Bennett  v.  Dawson.        88 

6.  Where,  upon  an  appeal  against  an  order 
of  removal,  the  justices  at  sessions  were 
efpially  (li\  iiled,  and  made  an  order,  that 
the  hearing  of  the  appeal  slioulil  be  ad- 
Journeil;  ontr  of  llie  jnstici  s,  who  voted 
in  favour  of  the  re8i)ondenl  parish,  be- 
ing a  rate<l  inhal)ilant  of  that  parish.  An 
application  for  a  certiorari  to  remove 
the  order  of  sessions,  in  order  that  it  and 
the  original  order  of  removal  might  be 
•  piaslied,  was  refused,  on  the  ground 
iliat,  even  if  the  order  of  sessions  were 
erroneous,  this  flonrl  had  no  jurisdiction 
to  review  it.  'J'hr  King  y.  Thr  Jnslicrn 
of  JMonmnulhuhirr.  167 

G.  The  Court  will,  upon  motion,  set  aside 


572 


INDEX. 


a  warrant  of  attorney,  judgment,  and  ex- 
ecution, on  the  ground  that  they  are 
fraudulent  against  creditors,  provided 
tlie  facts  upon  which  the  alleged  fraud 
depends  are  clearly  made  out  by  the 
affidavits  ;  but  where  those  facts  are 
disputed,  they  will  direct  an  issue  to 
try  the  question  of  fraud.  JIarrod  v. 
Kliah  }Viseman  Benton.  202 

7.  Where  a  defendant  obtains  a  mandamus 
under  13  G.  3.  c.  63.  s.  44,  for  examin- 
ing witnesses  in  India,  the  plaintifl",  gain- 
ing  the  cause,  is  entitled  to  the  costs  of 
cross-examining  those  witnesses.  Whytt 
V.  JirJnIosh  anil  Others.  228 

8.  When  a  cause  has  been  sent  back  by 
procedendo  to  an  inferior  court,  this 
Court  will  not  quash  the  writ  on  the 
ground  that  the  cause  is  important,  and 
fit  to  be  tried  in  the  superior  court. 
Hayivard  and  Others  V.  Wright.         242 

9.  The  Stat.  8  H.  6.  c.  9.  s.  6.,  which  gives 
treble  damages  to  the  party  grieved, 
by  a  forcible  entry  and  expulsion,  ap- 
plies only  to  persons  having  the  free- 
hold ;  for  the  remedy  is  given  against 
the  disseisor.  Cole  et  Ux.  v.  Robert 
Eagle  and  Others.  251 

10.  After  a  verdict  for  a  defendant,  the 
Court  made  a  rule  absolute  for  a  new 
trial,  and  ordered  that  the  costs  of  the 
former  trial  should  abide  the  event  of 
such  new  trial.  The  record  was  car- 
ried down  to  the  Spring  assizes  follow- 
ing, when  it  was  made  a  remanet.  It 
was  tried  a  second  time  at  the  Summer 
assizes,  when  a  verdict  was  again  found 
for  the  defendant.  The  Court  after- 
wards ordered  that  that  verdict  should 
be  set  aside,  and  a  new  trial  had  be- 
tween the  parties  upon  the  payment  of 
the  costs  of  the  last  trial,  and  that 
the  costs  of  the  first  trial  should  abide 
the  event  of  such  new  trial.  Upon  the 
third  trial  a  verdict  was  found  for  the 
plaintiff:  Held,  that  the  plaintiff  was 
entitled  to  the  costs  occasioned  by  the 
cause  having  been  made  a  remanet  at 
the  assizes  next  following  the  term  when 
the  first  rule  was  made  absolute  for  a 
new  trial.  Gibbins  and  Jlnotlier,  as- 
signees, V.  Phillips.  260 

11.  A  defendant  having  been  arrested, 
paid  into  court  the  sum  indorsed  on  the 
writ,  together  with  20/.,  as  a  security 
for  costs,  pursuant  to  the  statute  7  &.  8 
G.4.  c.  71.  s.  2.  The  Court,  on  the  ap- 
plication of  the  defendant,  allowed  the 
plaintiff  to  take  out  of  court  a  given 
portion  of  the  sum  paid  into  court,  and 
unless  he  consented  to  accept  thereof, 
with  costs,  in  full  discharge  of  the  ac- 
tion, ordered  it  to  be  struck  out  of  the 
declaration,  and  that  the  plaintiffshould 
not  give  any  evidence  at  the  trial  as  to 
that  sun,.     Hubbard  v.  Wilkinson.     276 

12.  An  affidavit  of  debt,  stating  that  de- 
fendant was  indebted  to  the  plaintiff  as 


liquidator  (duly  appointed  by  the  law  of 
France)  of  an  estate,  is  irregular,  unlesu 
it  shew  that  by  the  law  of  France  a 
liquidator  is  entitled  to  sue.  Tenon  v. 
Mars.  324 

13.  The  defendant  is  not  entitled  to  costs 
of  a  judgment  of  non  pros,  obtained  by 
reason  of  the  plaintiff  having  omitted 
to  enter  the  issue  on  record,  after  issue 
joined  on  a  demurrer  to  a  plea  in  abate- 
ment.    Michlam  v.  Bate.  324 

14.  An  affidavit  of  debt  for  money  paid  for 
the  use  and  benefit  of  the  defendant  is 
irregular,  if  it  omit  to  state  that  it  was 
paid  at  his  request.     Pitt  v.  JVetv.     325 

15.  In  actions  by  original,  the  judgment 
relates  to  the  essoign  day  of  the  term  in 
which  it  is  signed.  Whittaker  v.  Whit- 
taker.  336 

16.  Where  a  cognovit  was  given  on  the 
8th  of  February  in  Hilary  term,  with  a 
condition  that  judgment  should  not  be 
entered,  unless  default  should  be  made 
in  payment  on  the  ensuing  1st  of  April, 
and  the  defendant  died  in  Hilary  vaca- 
tion, before  the  1st  of  April,  judg- 
ment entered  up  on  the  10th  April  in 
Hilary  vacation,  after  defendant's  death, 
was  held  regular,  as  relating  to  the  first 
day  of  Hilary  term,  as  also  execution 
tested  of  a  day  in  that  term  anterior  to 
the  defendant's  death.  Calvert  v.  Ttm- 
lin.  343 

17.  An  affidavit  of  debt  sworn  before  a 
commissioner  in  the  country  is  insuffi- 
cient, if  it  do  not  state  the  party  before 
whom  it  is  sworn  to  be  a  commissioner. 
Howard  v.  Bro-wn.  13 

18.  Where  a  cognovit  was  given  on  the 
8th  of  February  in  Hilary  term,  with 
a  condition  that  judgment  should  not  be 
entered,  unless  default  should  be  made 
in  payment  on  the  ensuing  1st  of  April, 
and  the  defendant  died  in  Hilary  vaca- 
tion, before  the  1st  of  April,  judgment 
entered  up  on  the  10th  April  in  Hilary 
vacation,  after  the  defendant's  death, 
was  held  regular,  as  relating  to  the  first 
day  of  Hilary  term,  as  also  execution 
tested  of  a  day  in  that  term  anterior  to 
the  defendant's  death.  Culvert  v.  Tom- 
lin.  343 

19.  The  Court  will  not  discharge  a  de- 
fendant from  custody  under  a  ca.  sa.  on 
the  ground  that  he  has  been  before  ir- 
regularly taken  and  discharged  under 
criminal  process  at  the  instance  of  the 
plaintiff.     Mackie  v.  Warren.  408 

20.  Where  defendant,  after  an  application 
by  plaintifPs  attorney,  paid  plaintiff  the 
debt  demanded,  without  notice  that  a 
writ  had  been  sued  out,  about  which  the 
plaintiff  said  nothing,  and  the  attorney 
afterwards  arrested  defendant  for  the 
costs  on  a  writ  which  had  been  sued  out 
before  the  payment  of  the  debt,  the 
Court  stayed  the  proceedings  w'ithout 
costs.     Jluoke  v.  Wasp.  412 


INDEX. 


573 


21.  In  moving  to  set  aside  an  award  made 
under  a  rule  of  court,  the  rule  nisi 
ought  to  be  drawn  up  on  reading  the 
rule  under  which  the  matter  was  refer- 
red, and  the  objections  to  the  awai-d 
ought  to  be  specified.  Christie  v.  Ham- 
let. 414 

22.  The  Court  discharged  a  rule  for  chang- 
ing the  venue,  on  an  affidavit  that  the 
defendant's  attorney  had  said  he  should 
change  the  venue  to  postpone  the  trial, 
and  (which  was  the  fact),  that  in  the  in- 
terim, an  act  would  come  into  operation 
which  would  defeat  the  plaintift's  claim. 
Gaselee  J.  dissentiente.  Amner  and 
Another  v.  Cattell.  419 

23.  Money  paid  into  court  under  7  &  8  G 
4.  c.  71.,  to  abide  the  event  of  a  cause, 
is  not  paid  out  under  a  rule  absolute  in 
the  first  instance.     Symes  v.  Rose.     447 

24.  The  Court  discourages  the  practice 
of  ordering  nihil  to  be  returned  to  a 
scire  facias.      Bedington  v.  Bedington. 

449 

25.  Judgment  signed  in  a  writ  of  right,  be- 
cause a  blank  was  left  for  the  word  esp- 
lees  in  the  count,  set  aside.  Webb,  de- 
mandant ;  Lane,  tenant.  449 

26.  Affidavit,  that  the  defendant  had  un- 
dertaken to  be  answerable  to  the  credi- 
tors of  J.  and  W.  M.  for  the  amount  of 
the  debts  of  such  creditors,  on  their, 
the  creditors,  undertaking  not  to  issue 
a  commission  of  bankrupt  a.gainst  J.  and 
W.  M.  before  the  16th  of  August ;  that 
J.  and  W.  M.  owed  plaintiffs  1000/  ; 
that  neither  plaintiffs,  nor,  as  they  were 
informed  and  believed,  any  other  of  the 
creditors  of  J.  and  W.  M.  sued  out  a 
commission  of  bankrupt  against  J.  and 
W.  M.  before  the  16th  of  August ;  that 
neither  J.  and  W.  M.  nor  defendant 
paid  plaintiffs  the  1000/.  due  to  tlicm 
from  J.  and  W.  M.;  and  that  defendant 
owed  plaintiffs  1000/.  upon  his  said  un- 
dertaking. 

Held,  insufficient  to  hold  defendant 
to  l)ail.  Elworihy  and  ot/icra  v.  Thomas 
Minmdcr.  450 

27.  Where  a  party  to  an  arbitration  under 
a  nilc  of  court  revoked  the  arliitrator's 
authority  upon  discovering  imprf)pcr 
•onduct,  and  then  having  sued  for,  and  re- 
covered by  action,  damages  for  the  mat- 
ter in  dispute,  went  to  reside  in  Scot- 
land, the  (onrt  refused  to  stay  execu- 
tion upon  the  ap|)lication  of  tlie  adverse 
party,  who  proposed  thereby  to  com- 
pel him  to  appear  to  an  action  on  the 
arbitration-bond,  the  arbitrator  having 
awarded  against  him,  notwithstanding 
the  revocation  of  authority.  Stcirard 
V.  JViHiamJu/n.  484 

PRESENTATION. 
See  SiMONi. 


PRINCIPAL  AND  AGENT. 
See  Trover. 

PROBATE. 
See  EvinENCE. 

PROUSSORY  NOTE. 
See  Bill  of  Exchange.     Stamp. 

QUO  WARRANTO. 
See  CoHPORATioN. 

RATE. 

See  Justices. 

A  rate  in  the  nature  of  a  county  rate  may 
be  levied  in  Berwick-upon-Tweed,  that 
being  a  place  not  subject  to  the  com- 
mission of  the  peace  of  any  county  in 
England,  and  never  having  contributed 
to  a  rate  made  for  any  county,  although 
it  does  not  lie  within  tlie  body  of  an 
English  county,  and  although  no  rate  had 
ever  been  levied  there  before,  the  cor- 
poration having  defrayed  out  of  their 
own  funds  the  charges  to  which  the 
sums  raised  by  a  county  rate  are  appli- 
cable. The  King  v.  The  Justices  of  Ber- 
wick-upon-Tweed. 230 

RECOVERY. 

See  Fixe  asd  Recovert. 

Where  one  of  the  vouchees  became  insane 
between  the  time  of  executing  the  war- 
rant of  attorney  and  tlie  passing  of  the 
recovery,  the  Court  refused  to  let  it  pass 
as  to  him,  but  permitted  it  as  to  the  other 
parties.      Fak  and  others,  f  "Vouchees.    408 

REPLEVIN. 

1.  One  joint-tenant  may,  without  the  as- 
sent of  his  fellows,  appoint  a  bailiff  to 
distrain  for  rent  due  to  all  the  joint-te- 
nants.    Bohinson  v.  llnfiiuin.  73 

2.  Allowing  two  years  to  elapse  without 
])roceetlint;s,  Held,  to  be  a  breach  of 
the  condition  in  a  replevin-bond  to  pro- 
secute the  replevin  without  dela}-,  and 
that  the  ol)ligi-e  might  recover  on  such 
breach,  although  judgment  of  non-pros 
was  ntvcr  signed  in  the  county-court. 
Jljford  V.  J'rnr/t.  82 

3.  The  plaintilV  and  defendant  in  a  reple- 
vin suit  refi-rred  the  cause  to  an  arbitni- 
tor,  and  agreed,  without  the  privity  of 
the  sureties,  that  the  re])livin-l)ond 
should  stand  as  a  security  for  the  per- 
formance of  the  award:  Held,  that  the 
sureties  were  discharged.  Archer  v. 
I/nlc.  42 

RKSCOUS. 
I  Plaintiff  distrained  defendant's  cattle  da- 


574 


index; 


muji'c  feasant,  ami  x\'cnt  to  apprise  ile- 
tiinlant:  iliii-ing*  liis  absence  the  cattle 
escaped  Tor  half  an  hour  into  defendant's 
i^^round,  whence  plaintilf,  on  his  return, 
drove  them  to  his  own  yard:  defendant 
having  taken  them  thence, 

Held,  no  rescue.     Kiwwlcs  v.  Blake 
and  Thomas.  517 

SET-OFF. 

Set  Baxkhupt.     Evidence.     Pleading. 

1 ,  A  judgment  debt  due  from  V>.  and  others, 
in  action  of  trespass,  in  which  IJ.  was 
chiefly  concerned,  and  bound  to  indem- 
nify his  co-defendants,  was  set  oft' against 
a  judgment  debt  due  to  B.  from  plain- 
tiff.    Bonnie  V.  Benett  and  others.       27 

2.  Defendant,  an  insurance  broker,  being 
sued  for  premiums  received  by  him  on 
policies  subscribed  by  the  plaintift",  was 
allowed  to  set  off"  a  loss  on  one  of  those 
policies  effected  in  the  name  of  the  de- 
fendant at  the  request  of  T.,  on  goods 
in  which  T.  was  interested,  but  on  which 
the  defendants  had  a  lien  to  a  greater 
amount  than  the  set-oft"  claimed.  Duvies 
and  another,  .Assignees  of  How,  a  bunk- 
7-upt,  V.  Wilkinson.  77 

SETTLEMENT, 

By  .Apprenticeship. 
See  Appeal. 

1.  The  parish  officers  of  A.  bound  a 
pauper  apprentice  to  his  grandfather, 
who  was  described  as  a  butcher.  Inden- 
tures were  executed  with  the  sanction 
of  two  justices.  The  grandfather  in  fact 
did  not  carrj'  on  the  trade  of  a  butcher, 
but  he  and  tiic  mother  colluded  together 
and  fraudulently  imposed  him  on  the 
justices  and  the  parisii  officers  as  a  pro- 
per master  for  the  pauper:  Held,  that 
there  having  been  no  fraud  in  the  parish 
officers,  the  pau])er  gained  a  settlement 
by  serving  under  this  indenture,  'ihe 
King  V.  The  Inhabitants  of  Crreat  Sheepy 
in  the  county  of  Leicester.  154 

2.  The  father  of  a  pauper  was  about  to  put 
him  out  to  service,  w  hen  it  was  suggest- 
ed to  him  by  A.,  a  carpenter,  that  it 
would  be  better  for  the  pauper  to  learn 
his  (A.'s)  trade,  instead  of  going  to  ser- 
vice; and  A.  aftei-wards  hired  the  i)au- 
per  to  learn  his  trade,  and  to  do  any 
other  work,  as  well  as  that  of  a  car- 
penter. The  pauper  went  to  A.  and 
served  him  for  five  years,  living  during 
that  time  with  his  parents,  who  provided 
him  with  victuals  and  part  of  his  cloth- 
ing, the  remainder  being  provided  by  A. 
The  pauper  did  any  work  his  master  or- 
dered him  to  do,  and  at  the  end  of  that 
time  he  agreed  to  work  for  the  master 
as  a  journeyman  at  weeklj'  wages.  The 
sessions  having  found  that  this  was  a  de- 
fective contract  of  apprenticeship,  and 


not  a  contract  of  hlrii\g,  this  Court  con- 
firmed the  order  of  sessions.  The  King 
v.  The  Inhaliitants  of  Conthc.  155 

3.  The  master  of  ;i  jjarish  apprentice  not 
having  work  sufficient  for  him,  pro]ioscd 
to  him  to  go  to  a  farm  in  a  different  j)a- 
rish,  occupied  by  the  master's  sister. 
The  pau]5er  assented  to  the  pro])osal, 
and  agreed  with  her  to  work  there  for  a 
twelve-month  f"or  his  meat  and  drink. 
He  worked  for  her  for  four  years  and 
four  months.  During  the  first  two  years 
he  received  from  her  meat  and  drink. 
During  the  third  and  fourth  he  received 
wages:  Held,  first,  that  no  settlement 
was  gained  by  the  service  with  the  sister, 
the  service  not  being  under  the  inden- 
tures: Held,  secondly,  that  there  had 
been  a  putting  away  of  the  apprentice 
without  the  consent  of  the  justices, 
within  the  meaning  of  the  statute  56  G. 
3.  c.  139.  s.  9.  and  that  the  pauper  did 
not  by  his  service  with  the  sister  gain 
any  settlement  by  hiring  and  service. 
The  King  v.  The  Inhabitants  of  Shipton, 
in  the  county  of  Salop.  1 55 

4.  An  indenture  by  which  an  apprentice 
was  bound  for  seven  years,  to  serve  A. 
13.  for  the  first  four  years,  and  his  own 
father  for  the  last  three,  to  learn  two 
different  trades,  is  a  valid  indenture,  and 
requires  only  one  stamp.  77tc  King  v. 
77/6  Inhabitmiis  of  Louth.  210 

5.  The  statute  28  G.  3.  c.  48.  s.  4.  makes 
void  all  indentures  whereby  children  un- 
der eight  years  of  age  are  bound  ap- 
prentices to  chimney-sweepers,  and  no 
settlement  can  be  gained  by  serving  un- 
der them.  The  King  v.  The  Inhabitants 
of  Ilipsivcll.  _  267 

6.  Before  the  execution  of  an  indenture, 
the  master  said  that  the  intended  ap- 
prentice should  have  better  clothes.  The 
apprentice  then  applied  to  the  parish 
officers,  who  agreed  to  give  him  2/.  on 
the  execution  of  the  indenture,  for  the 
purpose  of  buying  clotlies,  which  they 
did  accordingly:  Held,  that  the  money 
paid  by  the  parish-officers  was  an  ex- 
pense incurred  by  reason  of  an  inden- 
ture of  apprenticeship,  within  the  mean- 
ing of  the  56  G.  3.  c.  139.  s.  11.  and, 
therefore,  that  tlie  indenture  required 
the  assent  of  two  justices.  The  King  v. 
The  Inhabitants  of  Mutti shall.  334 

7.  The  statute  56  G.  3.  c.  139.  s.  2.  enacts, 
that  in  cases  where  the  residence  or  es- 
tablishment of  business  of  the  person 
to  whom  any  child  shall  be  bound,  shall 
be  within  a  diff'erent  county  from  that 
within  which  the  place  by  the  officers 
whereof  such  child  shall  be  bound  shall 
be  situated,  and  in  all  other  cases  where 
the  justices  of  the  peace  for  the  district 
or  place  within  which  the  place  by  the 
officers  whereof  .such  child  shall  be 
bound  shall  be  situated,  and  who  shall 


INDEX. 


575 


sign  tlie  allowance  of  the  indenture  by 
which  such  child  shall  be  bound,  shall 
not  have  jurisdiction,  every  indenture 
by  which  such  child  shall  be  bound  sludl 
be  allowed,  as  well  by  two  justices  of 
the  peace  for  the  county  or  district  with- 
in which  the  place  by  the  officers  of 
which  such  child  shall  be  bound  shall  be 
situated,  ;is  by  two  justices  of  the  peace 
for  the  county  or  disti-ict  within  which 
the  place  shall  be  situated  wherein  such 
child  shall  be  Intended  to  serve:  Held, 
that  in  such  case  the  indenture  must  be 
allowed  by  four  distinct  persons,  two  of 
tlicm  being  justices  of  the  county  from 
which  the  appi-entice  is  to  be  bound; 
and  the  other  two  being  justices  of  the 
county  into  wliich  he  is  to  be  bound. 
Tlie  King  v.  Robert  Shipton,  337 

SETTLEMENT, 

By  Emancipation. 

A  pauper,  while  he  was  under  age,  quitted 
his  parent,  and  went  to  sea,  serving 
sometimes  in  a  king's  ship,  at  other 
times  in  trading  vessels,  and  remained 
in  such  service,  and  so  separated  from 
his  father's  flimily,  when  he  attained  the 
age  of  twenty-one  years:  Held,  that  he 
was  then  emancipated,  and  that  his  set- 
tlement did  not  afterwards  shift  with 
that  of  his  father.  The  King  v.  The  In- 
hubilanls  of  Luwford.  216 

SETTLEMENT, 

By  Estate. 

A  man  living  in  parish  A.  under  a  certifi- 
cate from  parish  B.  cannot  gain  a  settle- 
ment in  the  former  parish  by  purchasing 
an  estate  for  money.  'The  King  v.  The 
Inliubitanls  of  Great  Driffield.  328 

SETTLEMENT, 
By  Hiring  awl  iSiTvice, 

I .  Where  it  was  made  a  (jucstion  of  fact  at 
the  sessions,  whether  there  was  a  hir- 
ing and  service  fcjr  a  year  in  the  apin-l- 
lant  parish,  and  tlic  sessions  onfirrneil 
the  onlcr  of  removal,  subject  to  tlie 
opinion  of  this  (Jom-t  as  to  a  settlement 
being  gained  there  by  liiring  ami  ser- 
vice: Held  that  this  amounted  to  a  find- 
ing by  the  justices  at  sessions  that  there 
was  a  hu-ing  and  service  for  a  ye:ir  in 
that  pitrish,  and  tiiat  surii  finding  oiigiil 
not  to  be  disturbed  by  this  (loiirt,  if 
there  were  any  premist  s  to  warrant  it. 
The  Kint^  v.  The  InhniiilanlK  if  thr  Vur- 
i.fh  of  Si.  Jlndrrw  the  (ircnt,  in  the  'J'onm 
and  County  of  Camfiridi^r.  GJCi 

.'  Where  the  court  of  «|uartcr  sessions 
have  found,  upon  a  c;Lse  slated,  th;it 
there  wa.s  no  general  liiring,  this  Court 
will  not  disturb  their  dccisi(»i),  if  there 
appear  to  have  been  any  prnnises  to 
warrant   il.      Tin  Kim'  \     '/'/,>   Inhabit- 


ants of  Boslislon  in  the  County  of  Der- 
by. 326 

3.  Where  the  court  of  quarter  sessions 
have,  from  facts  proved  before  them, 
drawn  the  conclusion,  that  there  was  an 
implied  hiring  for  a  year,  this  Court  will 
not,  upon  a  case  sent  to  them  by  the 
sessions  stating  those  facts,  disturb  that 
decision,  if  there  appear  any  premises 
whatever  to  warrant  it.  The  King  v. 
77/6  Inhabitants  of  St.  Martin  in  Leices- 
ter. 327 

4.  A  hiring  at  so  much  per  week,  a 
month's  wages  or  a  month's  warning,  is 
a  hiring  for  a  year.  The  King  v.  St. 
Andrew  in  Pershore,  IVorccstershire.   327 

5.  By  an  act  of  parliament,  passed  for 
draining  certain  fen-lands,  5000  acres  of 
the  said  fen-lands  were  vested  in  certain 
trustees  as  a  recompense  to  the  under- 
takers; and  it  was  enacted,  that  all  the 
inhabitants  that  might  be  thereafter  up- 
on any  part  of  the  lands  so  allotted  to 
the  trustees,  and  were  not  able  to  main- 
tain themselves,  should  be  maintained 
by  the  said  trustees,  their  heirs,  &c., 
and  never  become  chargeable  to  all  or 
any  of  the  respective  parishes  wherein 
such  inhabitants  should  reside:  Held, 
that  the  lands  so  vested  in  the  trustees 
were  not  thereby  made  extra-parochial, 
and  that  a  party,  by  hiring  and  service 
on  those  lands,  gained  a  settlement 
either  in  the  parish  where  that  part  of 
the  allotted  lands  where  the  service  was 
performed  was  situate,  or  in  the  allot- 
ted lands  themselves,  which,  for  this 
purpose,  were  to  be  considered  an  in- 
corporated district.  The  King  v.  The 
Inhiibitanls  of  Crou'land,  in  the  Tarts  of 
Holland  in  the  County  if  Lincoln.       330 

SETTLEMENT, 

By  Payment  of  Rates, 
A  party  does  not  gain  any  settlement  by 
reason  of  his  having  been  asessed  to  and 
paid  the  watch-rate  in  thelTcily  of  Lon- 
don. Tlie  King  v,  Tlie  Inhabitants  of 
Chiint  Church,  J,ondun.  326 

SETTLEMENT, 
By  Renting  a  Tenement. 

1.  Since  the  Stat.  6(1.  4.  c.  57.  in  order  to 
gain  a  seltiemcnl  by  settling  upon  a  ten- 
ement, the  reserved  rent  lor  one  whole 
year  (wliulcv«:r  be  its  aniounl)  must  be 
paid.  The  King  v.  The  Jnhubitantu  of 
.Itldey   Hoy.  151 

2.  'Jhc  5'J  (i.  3.  c.  50.  requires,  inter  alia, 
that  in  order  to  acquire  a  tiiltlcment  by 
the  renting  of  a  tenement,  il  shall  conHist 
ofa  separate  and  ilistinet  dwelling-house 
or  building,  or  of  land,  or  of  both,  bona 
fide  hired  at  and  for  lO/.  a  year  at  ihc 
least,  for  the  term  of  one  whole  year, 
»nd  that  suih  iiousc  ot  building  bhull  be 


576 


INDEX. 


held,  and  the  land  occupied,  for  the 
term  of  lino  wliole  year :  Held,  that  a 
settlement  was  gained  under  this  statute 
by  a  pauper  hiring'  and  holding  for  one 
year  a  distinct  and  separate  dwelling- 
liouse,  altliougli  part  of  the  house  was 
let  to  an  undertenant.  The  King  v. 
The  Inhabilants  uf  Great  Bolton.       154 

3.  A  pauper  on  the  6th  of  April  1823 
hired  a  house  for  a  year  at  the  rent  of 
121.  per  annum  in  the  parish  of  A.  In 
January  1824  he  became  chargeable  to 
that  parisli,  and  was,  by  an  order  of  jus- 
tices, removed  to  the  parish  of  B. 
There  was  no  appeal  against  the  order 
of  removal.  The  pauper  returned  on 
the  same  day  to  his  house  in  the  parish 
of  A.,  and  continued  to  occupy  it  until 
the  expiration  of  the  year  for  which  he 
had  hired  it,  and  paid  the  rent  for  the 
year  :  Held,  that  as  the  pauper  had 
hired  and  held  the  house  for  a  year,  and 
paid  the  rent  for  that  period,  all  the 
requisites  of  the  statute  59  G.  3.  c.  .50. 
had  been  complied  with,  and  that  he 
gained  a  settlement  in  the  parish  of  A., 
by  renting  a  tenement.  The  King  v. 
The  Ihhabitants  of  Barham.  157 

4.  Since  the  59  G.  3.  c.  50.  a  settlement 
may  be  gained  by  a  residence  of  forty 
days  in  a  parish,  provided  the  party 
comply  with  the  conditions  mentioned 
in  that  act.  And,  therefore,  where  a 
pauper,  since  that  statute,  hired  land 
for  a  year  at  the  sum  of  10/.  and  paid 
that  rent,  and  occupied  the  land  for  the 
whole  year,  but  resided  only  forty  days 
in  the  parish,  and  not  upon  the  land,  it 
was  held,  that  he  gained  a  settlement. 
Ti.e  King  v.  The  Inhabitants  of  JVain- 

fteet  All  Saints.  206 

SHERIFF. 

See  Baxkbcpt.  Evidence,  22.  Execu- 
tion. 

1.  In  March,  the  then  sheriffs  of  London 
seized  the  goods  of  a  debtor  by  virtue 
of  a  fieri  facias.  An  officer  was  put  in 
possession  of  the  goods  :  but  the  execu- 
tion creditor  directed  the  shcrlfts  not  to 
sell,  and  the  debtor  continued  to  have 
the  controvil  of  his  goods  until  Novem- 
ber, when  another  execution  creditor 
sued  out  a  fieri  facias,  directed  to  the 
succeeding  sheriffs  of  London  :  Held, 
that  the  latter  were  bound  to  levy  under 
this  second  fieri  facias,  and  that  it  was 
their  duty,  when  they  found  the  officer 
of  the  former  sheriffs  in  possession,  to 
inquire  into  the  facts  ;  and  if  they  had 
done  so,  they  would  have  learned  that 
the  first  execution  was  fraudulent. 
Lf/vick  V.  Crowder  and  anolher,  late 
Sheriffs  of  the  Cily  of  London.  165 

SHIPPING. 

It  is  no  defence  to  an  action  by  the  owner 


of  a  ship  for  demurrage,  that  the  owner 
has  omitted  to  procure  the  necessary 
papers  for  the  discharge  of  the  cargo,  if 
he  omitted  to  do  so  at  the  request  of  the 
defendant,     Furnell  v,  Thomas.         411 

SPECIAL  OCCUPANT. 

Where  the  tenant  of  lands,  granted  to  him 
and  his  heirs  pur  auter  vie,  devised  them 
"  to  A.  B.,"   without  saying  more,  and 

A.  B.  died,  living  cestui  que  vie  :  Held, 
that  the  heir  of  the  devisor  was  entitled 
to  the  lands  as  special  occupant.  Doe 
on  the  demise  of  Jeff"  and  Hunter  V.  Jiob- 
inson  and  Anolher.  222 

SPRING  GUN. 

The  defendant,  for  the  protection  of  his 
property,  some  of  which  had  been 
stolen,  set  a  spring  gun,  without  notice, 
in  a  walled  garden,  at  a  distance  from 
his  house  :  the  plaintiff  who  climbed 
over  the  wall  in  pursuit  of  a  stray  fowl, 
having  been  shot,— Held,  that  the  de- 
fendant was  liable  in  damages.  William 
Bird,  an  Infant,  by  J.  Bird,  his  next 
Friend,  v.  Holbrook.  91 

STAMP. 

1.  A  promissory  note  for  11/.,  payable  to  A, 

B.  on  demand,  is  a  promissory  note  pay- 
able to  bearer  on  demand,  within 
the  meaning  of  the  55  G.  3.  c.  184., 
and  requires  a  stamp  of  two  shillings. 
Rentes  V.  Whieldon.  144 

2.  Where  the  members  of  a  mutual  insur- 
ance club  all  executed  the  same  power 
of  attorney,  severally  authorizing  the 
persons  therein  named  to  sign  the  club 
policies  for  them,  held,  that  it  required 
only  one  stamp.  Allen  and  Another,  An- 
sisnees  of  Scott,  a  Bankrupt,  v.  Morrison. 

^  298 

3.  A  note  for  100/.,  payableto  A.B.ororder 
on  demand,  is  subject  only  to  a  stamp  of 
3s.  6d.     Armitagev.  Berry  and  Another. 

518 
STATUTE. 

1.  By  s.  32.  of  a  private  act  of  parliament, 
a  water  company  was  empowered  to 
"break  up  the  soil  and  pavement  of 
roads,  highways,  footways,  commons, 
streets,  lanes,  alleys,  passages,  and  pub- 
lic places,"  provided  (s.  34.)  that  they 
should  not  enter  any  private  lands  with- 
out the  consent  of  the  owner:  Held,  that 
the  company  had  no  authority,  without 
the  consent  of  the  plaintiff,  to  enter  a 
field  of  his,  over  which  there  was  a  pub- 
lic footpath.     Scales  v.  Pickering.         37 

2.  Where  the  expenses  of  passing  an  act 
of  parliament  are  directed  by  the  act  to 
be  defrayed  out  of  certain  tolls  to  be  le- 
vied under  the  act,  it  is  inctnnbent  on  the 
party  who  sues  for  the  expense  of  sohcit- 


INDEX. 


577 


ing  the  act,  to  shew  that  tolls  have 
been  collected  sufficient  to  cover  liis  de- 
mand.    Andrews  r.  Dally.  74 

STOPPAGE  IN  TRANSITU. 

1.  The  shippers,  acting  for  G.,  purchased, 
and  paid  for  with  their  own  money, 
flour  at  Stockton,  which  was  sent  by  a 
vessel  to  London,  and  the  invoice  for- 
warded to  G.  A  manifest  of  the  flour 
was  also  forwarded  by  the  shippers  to  a 
wharfinger  in  London,  whose  practice 
it  was  to  deliver  goods  to  the  consignee 
named  in  the  manifest  upon  application, 
and  till  application  to  keep  it  on  board 
the  vessel;  if  not  applied  for  before  the 
vessel  returned,  he  landed  it,  and  kept 
it  in  his  warehouse,  to  the  order  of  the 
shipper;  if  the  goods  were  to  be  deli- 
vered to  order,  he  delivered  them  to 
persons  producing  either  bills  of  lading 
or  the  shipper's  invoices.  G.  was  in  the 
habit  of  having  flour  consigned  to  him 
at  the  wharf,  and  sometimes  sold  it  on 
board,  sometimes  when  it  was  landed, 
and  kept  for  him  in  the  wharfinger's 
warehouses. 

The  flour  in  question  arrived  at  the 
wharf  on  the  12th  of  April,  but  was  not 
landed  till  the  22d;  on  the  17th,  before 
any  application  by  G.,  who  had  become 
bankrupt,  the  flour  was  claimed  under 
an  order  from  the  shippers  :  Held,  tliat 
the  flour  not  having  been  landed,  nor 
any  application  having  been  made  by  G., 
the  shippers  might  stop  in  transitu. 
Tucker  and  Othert,  Assignees  of  John 
Anthony  Gilbert,  a  Bankrupt,  v.  John 
/fumphret/.  63 

2.  P.,  to  wliom  goods  were  consigned,  said, 
on  their  arrival  at  a  wharfinger's,  that  he 
would  not  have  them,  and  directed  an 
attorney  to  do  what  was  necessary  to 
stop  them.  The  attorney,  on  the  3d  of 
November,  gave  the  wharfinger  an  or- 
der Hot  to  deliver  them  to  the  consignee, 
which  order  the  consignor  wrote  to  con- 
firm on  the  6th  ;  on  the  7lli  the  goods 
were  claimed  under  an  execution  at  the 
suit  of  A. 

Held,  that  the  contract  Iictween  P.  and 
the  consignrjr  was  rescinded  ;  that  the 
transitus  was  not  mdcd  by  the  arrival  of 
the  goods  at  the  wliarf  and  the  order 
given  by  F.;  and  that  the  consignor  had 
a  right  to  stop  in  transitu.  Jiurtrum  v. 
Farebrother,  7'» 

TENANTS  IN  COMMON. 
See  Part?  VVai.t.. 

TITHES. 

Where  commissioners  under  an  inclosiirc 
act  of  1769  were  to  make  allotmentg  to 
persons  possessing  interests  in  llic  con- 
tiguous townships  A.,  R.,  anfl  ('.,  and 
made  allotments  to  a  rector  in  R.  and  (' 
in  respect  of  tilhcs  »nd  glebe  to  wliith 
VOL.   XV. 


he  was  entitled  in  B.  and  C,  and  in  A. 
in  respect  of  glebe  to  which  he  was  en- 
titled in  A.,  but  omitted  to  make  any 
specific  allotment  in  A.  in  respect  of 
tithes  to  which  he  was  entitled  in  A.; 
the  act  containing  a  saving  clause  for  all 
persons  other  than  those  to  whom  allot- 
ments or  compensations  should  be  made 
in  respect  of  their  several  interests: 
Held,  that  the  rector  was  not  barred 
from  suing  for  his  tithes  in  A.  in  1825, 
although  the  award  was  to  be  final  un- 
less appealed  against  in  six  months. 
Thorpe  v.  Cooper.  387 

TOLL. 

1.  Keeping  up  a  capstern  and  rope  in  a 
cove  to  assist  boats  in  landing,  and  with- 
out which  they  could  not  safely  land  in 
bad  weather:  Held,  a  good  considera- 
tion for  a  reasonable  toll  on  all  boats 
frequenting  the  cove,  whether  they  used 
the  capstern  or  not ;  and  the  custom  to 
exact  the  toll  held  good,  although  the 
party  claiming  it  was  neither  owner  of 
the  cove  nor  lord  of  the  manor,  nor  were 
his  predecessors  shewn  to  have  been 
such;  but  he  and  they  had  always  been 
owners  of  the  spot  on  which  the  cap- 
stern stood.and  of  an  estate  in  the  neigh- 
bouihood. 

2.  Held,  that  a  fisherman  frequenting 
the  cove  was  not  a  competent  witness 
for  a  party  resisting  the  toll.  Lord  Fal- 
mouth v.  George.  449 

TRESPASS. 

See  EviuENCE.  Costs.   Ovehseeus.  Mali- 
cious Injvuies  Act. 

1.  The  plaintifi,  who  had  bailt  a  chapel, 
conveyed  it  to  defendant  by  a  deed  the 
validity  of  which  was  questionable.  De- 
fenilant  took  possession,  and  gave  the 
key  to  a  gardener,  who,  with  his  per- 
mission, lent  it  to  the  plaintiff  to  preach 
in  the  chapel.  The  plaintifi'  thereupon 
locked  the  cli.ipcl,  and  rcfnscil  to  re- 
deliver the  key:  Held,  that  he  had  not 
suflicicnt  posscnsion  to  maintain  tres- 
pass.     Hi-vrtt  V,  Brown.  34.5 

2.  Defendant,  a  constable,  being  told  by 
A.  thitt  plaintiir  hail  robbed  her,  and  the 
information  being  countenanced  by  a 
supposed  intercepted  letter  which  was 
shewn  to  him,  apprchcntled  plaintiff,  a 
respectable  inhabitant  ot  f  ;licllenh:iin,at 
her  lodgings,  and  look  her  from  her  bed 
at  night  to  prison. 

I'hc  charge  proving  unfounded,  plain- 
tifi'sue<l  him  for  the  false  imprisonmentj 
and  the  .Judge  having  directed  the  jury 
to  consider  whether  the  foregoing  cir- 
cumstances aH"ordcd  the  defendant  rea- 
sonable ground  to  suppose  the  plamtifl' 
had  committed  a  felony,  and  whether, 
m  hi<t  situation,  the^  would  have  acted 
as  he  harl  done:  Meld,  that  this  direc 
lion  was  substantially  correct, 
7.3 


578 


INDEX. 


Held  also,  tliat.  onder  the  circumstan- 
ces, tlie  degree  of  coercion  resorted  to 
by  the  defendant,  was  not  excessive. 
Davii  V.  Jiuaaell  and  Others.  463 

TROVER. 

See   Bahkhupt.      Actioit  ow  the  Case. 

Evidence.    Pleading. 

1.  In  trover  for  a  packet  of  letters,  the  de- 
fendant was  allowed  to  stay  proceedings 
as  to  one  of  them,  upon  delivering  it  up 
and  paying  costs.     Earle  v.  Ilolderness. 

41 

2.  E.  being  indebted  to  plaintiffs,  agreed 
to  deposit  with  plaintiffs,  as  agent  to  P., 
a  bill  of  exchange,  as  security  for  a  sum 
advanced  by  P.;  and  having  deposited 
the  bill  with  plaintifls,  wrote  to  them  as 
follows  ; — "  The  bill  you  will  hold,  sub- 
ject to  P.'s  advance  ;  and  also  for  any 
advances  or  expenses  you  have  against 
me."  The  bill  having  been,, at  the  in- 
stance of  the  acceptor,  surreptitiously 
taken  by  the  defendant,  Held,  that  the 
plaintiffs  might  sue,  and  recover  against 
him  in  trover,  although  P.  had  pre- 
viously sued  him,  and  had  recovered  by 
the  award  of  an  arbitrator  the  amount  of 
bis  advance.  Knight  and  Another  v. 
Legh.  83 

3.  A  sheriff,  who  takes  in  execution  the 
goods  of  a  bankrupt,  is  liable  in  trover 
to  his  assignees,  although  he  has  no  no- 
tice of  the  bankruptcy,  and  a  commis- 
sion has  not  been  sued  out  at  the  time 
of  the  execution.  Price  and  Another, 
Assignees  of  Latham,  a  Bankrupt,  v. 
Hebjar.  87 

VENDOR  AND  VENDEE. 

1.  Defendant  having  offered  to  purchase 
a  house,  and  to  give  plaintiff  six  weeks 
for  a  definitive  answer,  Held,  that  before 
the  offer  was  accepted,  the  defendant 
might  retract  it  at  any  time  during  the 
six  weeks. 

Averment,  that  plaintiff  was  entitled 
to  a  term  of  thirty-two  years  in  the  pre- 
mises, under  a  contract  with  A.,  and 


that  plaintiff  having  agreed  to  take  the 
premises,  defendant  was  ready  to  grant 
him  a  lease  of  thirty-one  years: 

Plaintiff  having  only  a  twelve  yean' 
term  in  the  premises,  and  shewing  no 
written  contract  with  H.  for  a  term  of 
thirty -two  years,  Held,  a  material  vari- 
ance. 

Defendant  offered  to  purchase  a  house 
upon  certain  terms,  "  possession  to  be 
given  on  or  before  25th  July;"  plaintiff 
agreed  to  the  terms,  and  said  he  would 
give  possession  on  the  first  of  August, 
Held,  no  acceptance  of  defendant's 
■    offer,     Roiitledge  v.  GranP.  99 

2.  A.  agreed  to  sell  to  B.  his  interest  in  a 
public-house,  and  his  furniture,  8ic.  at 
an  appraisement  to  be  made  by  two  ap- 
praisers, the  same  to  be  paid  for  on  B.'a 
taking  possession,  which  was  to  be  on 
or  before  the  25th  of  March  then  next ; 
and  30/.  was  paid  by  B.  as  a  deposit; 
and  he  agreed  that  if  he  should  not  com- 
plete his  part  of  the  agreement,  the  sum 
so  paid  should  be  forfeited.  The  buyer 
and  seller  appointed  appraisers  respec- 
tively. On  the  25th  of  March  the  two  ap- 
praisers met,  and  the  seller's  appraiser 
was  then  informed  that  the  appraiser  of 
the  buyer  could  not  conveniently  on  that 
day  complete  the  valuation,  but  would 
finish  the  business  the  next  day  ;  no  ob- 
jection was  then  made  to  the  proposed 
delay.  The  appraiser  of  the  buyer 
■went  to  the  seller's  premises  the  fol- 
lowing day  to  make  the  valuation,  but 
the  seller  refused  to  allow  him  so  to  do, 
and  said  he  would  not  complete  the 
contract :  Held,  that,  under  the  circum- 
stances, it  was  incumbent  on  the  seller, 
if  he  intended  to  insist  that  the  contract 
should  be  completed  on  the  day  men- 
tioned in  the  agreement,  to  have  noti- 
fied such  intention  to  the  buyer ;  and 
not  having  so  done,  that  the  latter  was 
entitled  to  recover  back  the  deposit. 
Carpenter  v.  Blandford.  201 

WARRANT  OF  ATTORNEY. 

See  BANKau»T.    Pbactici, 


END  OF  VOLUME  XV, 


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